Her Majesty the Queen - v. -, 2011 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 009 Date: January 10, 2011 Information: 398007030 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dennis Barry Wetzel Appearing: Mr. B. Pashovitz For the Crown Mr. M. Owens For the Accused JUDGMENT Q. D. AGNEW , J [ 1 ] The accused, Dennis Barry Wetzel, was charged that on or about September 11, 2008 at or near Saskatoon he operated a motor vehicle: 1) while his ability to do so was impaired by alcohol or a drug, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and 2) while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 255(1) and 253(1)(

b) of the Criminal Code . During the course of the trial the Crown stayed count one, leaving only the “over 80" charge against the accused. [ 2 ] The accused argued that his rights under the Canadian Charter of Rights and Freedoms were violated by the police in the

course of this matter, in two respects. Firstly, the accused argued that there had been no objective “reasonable and probable grounds” under s. 254(3) of the Criminal Code for a breath demand to be made on him, and that his right to be secure against unreasonable search or seizure and arbitrary detention as guaranteed by ss. 8 and 9 respectively of the Charter had thus been violated. He asked that the Certificate of Analyses produced from his breath tests be excluded from evidence pursuant to s. 24(2) of the Charter .

I note in passing that the requirement that the officer have “reasonable and probable grounds” before demanding a breath sample no longer exists; rather, section 254(3) requires only that the peace officer have “reasonable grounds”. [ 3 ] The second Charter issue raised alleged that the accused had been arbitrarily detained or imprisoned contrary to s. 9 of the Charter . The remedy sought was a stay of proceedings. [ 4 ] The accused also argued that his breath samples had not been taken as soon as practicable.

If I conclude that the defence submission is correct, I am presumably to conclude that the Certificate of Analyses would not be admissible in evidence. [ 5 ] Before dealing with the substantive matter, I should note that at the conclusion of argument, counsel for the Crown indicated that he wished to locate and file with me a specific case regarding impairment. I gave him leave so to do, and gave counsel for the defence a period thereafter in which to respond to that case if he felt it appropriate. Crown counsel provided his case.

Defence counsel, in addition to responding to that case, also filed three further cases dealing with the meaning of “as soon as practicable”. Defence counsel had not requested leave to file further material with respect to this additional issue, nor had I invited any further material on it.

These new cases were in addition to the voluminous material he had already filed, and notwithstanding my advising him during his argument that I would not be reviewing his material except for the cases to which he made specific reference. [ 6 ] In the absence of specific leave from the Court, it is inappropriate for counsel to file additional material after the close of argument. By doing so in this case, defence counsel has deprived Crown counsel of any possible opportunity to respond. As the defence called evidence, defence counsel presented his argument first.

That was when these cases should have been presented, filed and referred to. Crown counsel would then have had his proper chance to address them. If for some reason defence counsel was not able to do so, he should have requested leave to file them so that I could have afforded Crown counsel an opportunity to respond, if he felt it necessary.

By taking the tack he took, defence counsel has, deliberately or otherwise, attempted to circumvent the provisions of the Criminal Code specifying that the Crown was entitled to argue last. [ 7 ] While there may be situations when it is appropriate for the mandated order of argument to be changed, or for additional material to be provided following argument, it is up to the Court and not counsel to decide if and with what precautions that is to be done. [ 8 ] I have accordingly not considered, or even looked at, the three additional cases provided by defence counsel on the issue of “as soon as practicable”. [ 9 ] The following outlines the structure of these reasons from this point: 1.

Facts 2. Reasonable Grounds 3. As Soon as Practicable 4. Arbitrary Detention 5. Remedy for Charter Breach for Arbitrary Detention 5.1 - Stay of Proceedings 5.2 - Other Possible Remedies 5.2.1 - reduction in penalty 5.2.2 - time served 5.2.3 - costs 5.2.4 - damages

5.2.4.1 - availability of the remedy 5.2.4.2 - jurisdiction of Provincial Court of Saskatchewan 5.2.4.3 - appropriateness of the remedy to the present case 5.2.4.4 - quantum 6. Conclusion 1. Facts [ 10 ] At 23:48 hours on September 11, 2008, Constables Kelly Tryon and Richard Bueckert were in a marked Saskatoon Police Service car when they received a dispatch reporting a possible impaired driver. The dispatch indicated a location near theirs, and that the vehicle in question was a green van pulling a white trailer with Alberta license plates.

They found a vehicle matching that description almost immediately, and followed for a distance totalling one to two blocks, through turns, including a u-turn. The officers pulled the vehicle over, and both approached it. Constable Tryon was on the right side of both vehicles, while Constable Bueckert was on the left, or driver’s, side. Constable Bueckert testified that when the accused, the driver, exited the van, he staggered, had glassy eyes and a strong odour of alcohol. Constable Bueckert then arrested the accused for impaired driving, and made a breath test demand.

He also provided the usual rights and warnings. [ 11 ] The accused was placed in the back of the police car, and either Constable Bueckert or Constable Tryon decided to call for a tow truck to deal with the accused’s van and trailer. They spent 35 minutes waiting for the tow truck to appear. Once it arrived, and arrangements had been made with the operator, the Constables took the accused to the police station. [ 12 ] At the station, the accused was given a telephone call to counsel. Thereafter, he provided appropriate breath samples for analysis.

He completed the second breath test at 1:50 a.m., following which he was placed in cells and ultimately released at 10:20 a.m. 2. Reasonable Grounds [ 13 ] It is common ground that, based on the dispatch, the officers were justified in stopping the accused’s vehicle. Crown and Defence differ, however, on whether or not there were reasonable grounds for making the breath demand of the accused. [ 14 ] When the accused stopped his vehicle in response to the police emergency lights, he stepped out of the vehicle before Constable Bueckert reached his van.

According to Constable Bueckert, the accused staggered as he exited the vehicle, had glossy eyes and had a strong smell of beverage alcohol when Constable Bueckert spoke with him outside the vehicle. At that point, the Constable arrested the accused for impaired driving and provided him with his rights and warnings. The decision to arrest was made very soon after Constable Bueckert began to speak with the accused. [ 15 ] Constable Tryon exited the police cruiser from the passenger side, and walked up the right side of the van.

He was able to observe through the van’s windows as the accused and Constable Bueckert met. He did not observe any stumbling at that time, and was not able to make any other observations of the accused before Constable Bueckert arrested the accused. [ 16 ] Accordingly, it is only Constable Bueckert’s evidence which supplies any information as to the alleged indicia of impairment. The credibility of his evidence, particularly with respect to the accused staggering, must also be assessed in light of Constable Tryon’s not having observed such an event at that time.

Of course there may be various reasons why one witness sees a transitory event and another does not, but presumably Constable Tryon was observing the accused just as was Constable Bueckert, yet their evidence differs with respect to a significant indicator of possible impairment. [ 17 ] Added to Constable Bueckert’s observations must be the evidence of the accused’s driving. After the officers received the dispatch and located the accused’s vehicle, they observed it make a right hand turn and subsequently a left hand u-turn, over the course

of one to two blocks of driving. The evidence is that the driving was perfectly normal, including appropriate signalling. When the police signalled for the accused to pull over, he did so promptly, and stopped his vehicle an appropriate distance from the curb. In other words, there was no indication of any difficulty with driving. [ 18 ] It is clear that unusual driving is not required for an officer to conclude that the accused’s ability to operate the vehicle was impaired by alcohol [1] .

Nonetheless all of the information known to the officer at the time, both inclining toward and away from a conclusion of impairment, must be considered in determining whether the officer’s belief was reasonable [2] . [ 19 ] Taking all of these factors into account, I have concluded that the officer lacked reasonable grounds for demanding a breath sample from the accused, and thus breached his rights under s. 8 of the Charter . [ 20 ] Having found such a breach, I have to make a determination, pursuant to s. 24(2) of the Charter , of whether or not exclusion of evidence obtained after that time, specifically the Certificate of Analyses, would be an appropriate remedy.

The framework for so doing was recently set out by the Supreme Court of Canada in R. v. Grant [3] . [ 21 ] There are three steps or areas of consideration to review under the Grant test. The first is the seriousness of the police conduct. In the case before me, the officer lacked reasonable grounds for his belief that the accused was impaired. His conduct was not reckless, nor was there a wilful disregard of Charter rights. His testimony at trial was not misleading or otherwise problematic.

At the same time, his conduct resulted in a person being detained by the police when, as I have found, they were not entitled to detain him. This automatically elevates the seriousness of the matter: individuals in Canada are entitled to go about their lives without interference by the police, unless that interference is authorized by law and meets the test of the Charter .

I do not, however, consider this to be a case where public confidence in the administration of justice will be undermined. [ 22 ] I am aware that the officer had at least some grounds to believe that the accused’s ability to operate his vehicle was impaired by alcohol. It could be stated that the officer and I simply disagree about how strong those grounds were, that officers have to make quick decisions which the Court has the luxury of time to second-guess, and that accordingly this mere difference of opinion between the officer and I should make the first factor quite minor.

The point is not without its merits, but ignores the fact that the law demands of officers that they make the correct decision, notwithstanding that it may be difficult. The first factor in Grant already encompasses a weighing of the police conduct, and in my view the more reasonable the officer’s belief, the less weight should be assigned to this factor. It can never, however, disappear entirely. [ 23 ] The second factor in the Grant inquiry deals with the impact of the breach on the Charter -protected interests of the accused.

The impact was not trivial or transient; it resulted in the accused’s arrest and transportation to the police station, breath tests being taken and the accused being charged. Whether those results might have occurred in any event would be relevant, but is unknown to me. The evidence suggests that in fact the outcome might have been different: the evidence post-arrest is far from unequivocal in terms of indicia of impairment.

In other words, this is not a case where the officer simply “jumped the gun” in making the breath demand: it is not clear that had he simply waited, further observation would have undoubtedly provided reasonable grounds. Rather, had he waited, it is reasonably possible that the grounds for the breath demand would not have gotten any stronger. The breach therefore had a significant impact on the accused. [ 24 ] The third factor is society’s interest in the case being decided on its merits.

This factor favours admission of the evidence, particularly in light of the reliability of the evidence and its crucial importance to the Crown’s case. [ 25 ] There are a great many decisions on Charter breaches in these circumstances, with some excluding the evidence and some allowing it. I do not propose to review them here. The Grant analysis is always highly fact-specific, and other cases are of limited utility. [ 26 ] Balancing all of the Grant factors together, I have concluded that the Certificate of Analyses should be admitted.

3. As Soon as Practicable [ 27 ] Sections 254(3)(a)(

i) and 258(1)(c)of the Code require that the samples of the accused’s breath be taken “as soon as practicable”. That phrase has been interpreted a number of times to mean “within a reasonably prompt time under the circumstances” [4] or "as soon as reasonably can be expected" [5] . The question that must be examined is why there was a delay, and whether the reason or reasons for that delay were reasonable under the circumstances. Here, the delay was 35 minutes, and the reason was that the officers were waiting for a tow truck to arrive to tow the accused’s vehicle and trailer.

There is no doubt but that in some circumstances, waiting for a tow truck is reasonable and will not violate the “as soon as practicable” requirement [6] . [ 28 ] The two officers were asked why the van and trailer were towed away. There were a number of explanations offered. There were initially two reasons, offered concurrently. The first was that the van and trailer were stopped in a bus stop, or alternatively partially in a bus stop, and therefore had to be towed away to clear the bus stop. The second was that the vehicle was towed to prevent a reoccurrence of the offence.

Subsequently, it was indicated that the vehicle and trailer had been seized in order to secure them, the implication being that this was an unsafe neighbourhood and a vehicle and trailer left unattended might be stolen, ransacked or otherwise interfered with. Finally, Constable Bueckert indicated that he always impounds the vehicle when he arrests a suspected impaired driver.

Given the way the evidence developed, it is my conclusion that it was this fourth explanation which was the true reason for the impounding of the vehicle and trailer being driven by the accused, and that while the other explanations might well be good reasons for a vehicle to be impounded in specific circumstances, they were not in fact the cause of the impounding of the van and trailer here.

Rather, Constable Bueckert directed that they be impounded because this is what he invariably does when he has arrested a possible impaired driver. [ 29 ] With respect to the “bus stop” explanation, I was left with some doubt as to whether the entire van and trailer were in the bus stop, or whether they were only partially in the bus stop and in any event whether or not they could have been moved slightly to be parked outside of the bus stop.

Similarly, there was no evidence as to whether it was necessary to tow both the truck and the trailer, or if it was simply the trailer that was in the bus stop and therefore it could have been towed, leaving the truck. [ 30 ] As indicated, an alternate explanation was that the vehicle was towed to prevent a possible reoccurrence of the offence. Of course, at the time the decision was made to impound the vehicle, it had not been determined that there was in fact any offence that had been committed.

Indeed, at the trial of this matter the Crown stayed the count of impaired driving, and of course the officers did not know whether or not the accused was going to blow in excess of the legal limit until they had him at the police station and observed the test results. It is not necessary for there to be a conviction before the police can reasonably be concerned about continuation of an offence; however, the reasonableness of their concern, or its credibility, is a valid question for the Court. The police are not automatically entitled to assume that the laying of a charge overrides the presumption of innocence.

In any event, this issue is moot, since as I indicated above I have concluded that this, like the previous explanation, is not the reason why the vehicle was impounded. [ 31 ] The third explanation offered for the impounding of the vehicle was to provide for its security, so that neither the vehicle nor the trailer, nor their respective contents, could be stolen while the accused was away. I have several difficulties with this explanation.

Although the evidence is that the accused was coherent, rational and capable of understanding the charges and warnings read to him, there was no attempt to ascertain from him whether or not he wanted his vehicle towed so that nothing would be stolen. Furthermore, by the time decision was made to impound the vehicle, the police were aware of the accused’s residential address, which was approximately one and one-half blocks away from where he was stopped.

The accused therefore, firstly, was aware of the nature of the neighbourhood, secondly in some sense at least accepted the risk of the neighbourhood, and thirdly could have requested that the vehicle and trailer be towed to his house rather than to the police impound lot, had he been given that choice. [ 32 ] However, with respect to this explanation the most telling piece of evidence is, like the dog that did not bark, what the police did not do.

They waited for the tow truck to arrive, and when the tow truck operator indicated that he could not tow both the van and trailer together, arranged for him to leave with the van and come back to pick up the trailer later. The police, rather than waiting for him to return, also left at that time. In other words, having supposedly arranged for the vehicle and trailer to be impounded because they would be unsafe if left unattended in this neighbourhood at night, they left the trailer unattended.

This suggests to me very strongly that the security of the van and trailer was not in fact the reason the police had them impounded. [ 33 ] The last explanation offered in the trial, and the one which I accept as the true one, is that the van and trailer were seized

because that is Constable Bueckert’s invariable practice so to do in a case where he has arrested a suspected impaired driver. This, according to the Constable, is not Saskatoon Police Service policy, but simply his own personal policy. He offered no explanation as to why he thought this was appropriate. If I understand his evidence correctly, any driver who has the misfortune to be arrested by Constable Bueckert for being impaired will have his or her vehicle seized, towed away and impounded.

Upon the person’s release from the police station, they will have to make their own way, at their own expense, to the impound lot and pay the towing and impound fees, whether they were in fact impaired or over .08, charged with an offence or not. I can think of no rationale for a blanket policy of that nature; indeed, none was offered.

Whether or not this is simply Constable Bueckert’s own way of punishing drivers he considers to be impaired, it is not appropriate, nor is it lawful. [ 34 ] As it was not lawful for the vehicle and trailer to be seized, it was not reasonable for Constables Tryon and Bueckert to wait thirty-five minutes for the tow truck to arrive in order to effect the seizure. That being the case, the breath tests were not taken as soon as practicable. [ 35 ] The technician who administered the breath tests was not called to give evidence.

Thus, the only available information regarding the accused’s blood-alcohol level is the Certificate of Analyses. The use that can be made of the Certificate is governed by s. 258(1)(c). That clause specifies that the Certificate is evidence of the accused’s blood-alcohol level at the time of driving only if, inter alia , “each sample was taken as soon as practicable after the time when the offence was alleged to have been committed”. As indicated above, I have found this not to have been the case.

The Certificate, therefore, is only evidence of the blood-alcohol level of the accused at the time the tests were administered. At the time of the first test, namely 1:26 a.m., the accused had 140 milligrams of alcohol in 100 millilitres of blood. At the time of the second test, 1:50 a.m., that figure was 130 milligrams.

In the absence of the presumption in s. 258(1)(c), and in the absence of any evidence relating the blood-alcohol level at the time of the tests to the blood-alcohol level at the time of driving, I am left with nothing to show that the amount of alcohol in the accused’s blood at the time he was driving exceeded the legal limit. The accused is therefore entitled to be found not guilty for that reason. 4.

Arbitrary Detention [ 36 ] The accused also applied for a stay of proceedings on the basis of an alleged breach of s. 9 of the Charter , his right to be free from arbitrary detention or imprisonment. [ 37 ] The accused completed his second breath test at 01:50 hours. He was released from police custody at 10:20, eight and one- half hours later. [ 38 ] The Crown did not call as a witness any person who had any

part in the decision to detain the accused at the completion of the breath test. Similarly, there was no evidence as to why the accused was released at 10:20 a.m. Both of the Crown witnesses, Constables Tryon and Bueckert, testified that they were not responsible for making that decision, and did not have any input into it.

They each offered evidence as to their understanding of the factors that might be taken into account in making a decision about release, but that evidence is of course hearsay: I have no way of knowing whether the releasing officer used those factors, other factors or some combination in making a determination about release. [ 39 ] The decision to release the accused at 10:20 a.m. would have been made by the sergeant in charge of detention, according to the evidence. That person’s name was not revealed, nor were they called as a witness.

The information on which they made their decision to detain the accused is not in evidence, nor are the reasons for that decision. [ 40 ] The only information with respect to reasons for detention came from Constable Bueckert. Given that he was not involved in the decision to hold the accused, his comments are either speculative or hearsay, or perhaps both. Nonetheless, it is interesting to consider his understanding of why the accused would likely have been held in custody. He testified that his understanding was that the accused would be held until he could understand his release documents.

Those documents are the Appearance Notice or other document requiring his attendance in court on a specific date, the Certificate of Analyses and the Notice of Intention to Seek Greater Penalty. [ 41 ] It is not immediately obvious to me how this suggested reason makes any sense. There is no pressing need for an accused to be able to understand those documents with perfect clarity at the moment they are released from police custody. They must obviously understand the Appearance Notice before the court date specified in it, but under normal circumstances I would expect an accused to

have had an opportunity to become sober well before the time they are required to be in court. They must understand the Notice of Intention, so they are aware of their potential jeopardy, and they must understand the Certificate of Analyses so they are aware of that aspect of the Crown’s case against them. None of these, however, must be perfectly understood at the time the accused is released from police custody. Rather, they must be understood in sufficient time for the accused to make an informed decision about the choices they will ultimately be faced with in court.

Holding an accused in custody until they can understand those documents upon their release simply makes no sense. At most, the accused must be able to understand that these are important court documents which they should review as soon as they are able. [ 42 ] Furthermore, by the time an accused can be given these documents, they have already been informed of the charge against them and given the standard cautions, rights and warnings.

In the present case, I was assured by Constable Bueckert that the accused fully comprehended his rights and warnings, yet Constable Bueckert nonetheless testified to his belief that the accused would not have understood the relatively simple documents which had to be served on him. I fail to see how those documents, which the accused could peruse at his leisure, are more complex or less easily understood than the barrage of warnings, cautions and rights provided to the accused verbally and which he heard only one time.

None the less, I am told that the accused fully understood the one but was incapable, apparently for a period of over eight hours, of understanding the other. [ 43 ] Constable Bueckert confirmed that he made no attempt to provide the documents to the accused, nor to determine whether or not the accused might have understood them had they been presented to him.

Rather, on the basis of the breath test results alone, Constable Bueckert concluded that the accused would not have “fully understood” those documents. [ 44 ] I have reviewed the above in some detail, notwithstanding that it is inadmissible, because it is the only information, albeit fatally flawed as evidence, provided to me that even purports to explain why this accused was held in custody for eight and one-half hours after his breath tests were concluded. The Crown did not provide any actual evidence as to why the accused was held, or indeed why he was released.

As I have tried to explain, the reasons suggested by Constable Bueckert for the accused’s detention are clearly invalid. There is no other basis that has even been offered, let alone proven, for the accused to have been held in custody. There is no suggestion in the evidence of any lawful basis for the accused to have been held in custody following the completion of the breath tests. While the onus is on the accused to proved the Charter breach on a balance of probabilities, the tactical burden shifts to the Crown once the accused has made out a prima facie case. The Crown singularly failed to meet that burden.

Accordingly, I find that the accused was arbitrarily detained, contrary to s. 9 of the Canadian Charter of Rights and Freedoms. 5. Remedy for Charter Breach for Arbitrary Detention 5.1 - Stay of Proceedings [ 45 ] The question, then, is what if any remedy would be appropriate. The accused has urged me to order a stay of proceedings. However, I am mindful of the Supreme Court of Canada’s instructions that a judicial stay is appropriate only in the clearest of circumstances [7] . The recent decision of the Supreme Court in R. v.

Nasogaluak [8] is helpful in deciding when that standard has been met. [ 46 ] In Nasogaluak , the Court held that the police had used excessive force in arresting the accused. Although force was required as the accused resisted, the officers punched him twice in the head while wrestling him out of his car, punched him a third time when he was out of the car, and pinned him face down on the pavement with one officer on his back and another officer kneeling on his thigh. At that point he was punched twice in the back, breaking his ribs and puncturing his lung.

The officers did not report the force they had used to arrest the accused, and despite the accused giving indications of medical distress while in detention, he was not provided with any medical attention. Upon release, he went to a hospital, where he was given emergency surgery for a collapsed lung arising from his broken ribs.

The trial judge found that, notwithstanding the evidence of the force used on the accused, a stay of proceedings was not an appropriate remedy, that this was not one of the “clearest of cases” in which a stay was necessary in order to remedy prejudice to trial fairness arising from the breach. That finding was not disturbed on appeal. Although Nasogaluak is concerned with the issue of whether available Charter remedies include reducing a sentence below the statutory minimum, nonetheless the trial judge’s conclusion with respect to judicial stay is noted by the Supreme Court [9] and not adversely commented upon.

I conclude therefore that the Supreme Court of Canada was in agreement that this excessive force by the police, ultimately requiring emergency surgery, was not sufficiently outrageous to warrant a judicial stay.

[ 47 ] On that basis I am unable to conclude that being detained in custody for several hours and not otherwise harmed either physically or psychologically, as the accused was in this case, justifies a stay of proceedings. Counsel have been kind enough to provide me with a number of cases in which a stay of proceedings for arbitrary detention has been granted [10] , and a number in which it has not [11] .

There are of course other cases as well to which counsel have not made reference. [ 48 ] In light of the uncertain state of the current law, I proceed on the basis that the Supreme Court of Canada in Nasogaluak has set the bar for judicial stays extremely high, and that it has not been met in this case. 5.2 - Other Possible Remedies [ 49 ] One difficulty with the remedy of a stay of proceedings is that it is binary, not scalable: either the situation merits a stay or it does not, and there is nothing in between.

For conduct which falls just short of meeting the test for a stay, no stay is possible; for conduct which edges just slightly further, a stay is granted even though there is only a very small difference between the two situations. Furthermore, the fact that the remedy is not scalable means that it cannot be adjusted to account for the differences in situations, or in police conduct over the course of time (as in R. v.

Holbrook , where one of the reasons for granting the stay was the fact that the same RCMP detachment had been found violating s. 9 in precisely the same way almost seven years previously, and had apparently not changed their ways [12] ). The latter point is significant in that one of the objectives of a Charter remedy, in appropriate circumstances, is to secure future compliance with the Charter by the actor breaching it [13] . [ 50 ] Here, the length of the detention was not extremely long. It was not in unbearable conditions, nor in degrading circumstances.

It was, however, a clear violation of the accused’s right to be left alone by the police. The fact that there was not even an attempt by the police to explain their actions is to my mind particularly telling: it suggests to me that there is no explanation. [ 51 ] This is not a case of a trivial breach of the accused’s rights. There is no “ de minimis non curat lex ” argument to be made. It is a feature of totalitarian regimes the world over that people can be seized and held by the authorities without justification; it is a defining feature of Canada that we do not allow such conduct.

In the case before me, there was no attempt whatsoever to justify the accused’s detention. Rather, the case proceeded on the basis that the police had held the accused in custody, turned him out from the police station hours later, offered no explanation or excuse however mistaken or wrong-headed, and expected that to be the end of the matter. [ 52 ] As noted above, there have been a great many cases similar to this. Simply the few cases provided by counsel date back in the main to almost a decade ago, and two are from 1986 and 1987 respectively.

This suggests to me that, whether or not a stay of proceedings is appropriate in light of Nasogaluak , that remedy has failed to correct this problem of police unjustifiably holding people in custody. To my mind, this is an additional reason to look for a remedy other than a stay of proceedings. [ 53 ] In R. v. Mills [14] , Lamer J gave examples of what he considered to be “criminal law remedies” available for Charter breaches.

Although the wording used suggests that the list is not exhaustive, nonetheless the remedies that he specified were [15] : (1) adjournment; (2) bail relief; (3) disclosure; (4) exclusion of evidence; (5) stay of proceedings.

[ 54 ] Numbers one through three are clearly not appropriate to a case such as this. Number four, the exclusion of evidence, is also problematic, since there is no logical connection between any evidence and the Charter breach, as the breach occurred after all evidence had been gathered.

A stay of proceedings, for the reasons outlined above, is also not appropriate. [ 55 ] There have been other remedies which courts have employed on occasion for Charter breaches. 5.2.1 - reduction in penalty [ 56 ] The lower court in Nasogaluak ordered the accused to pay a penalty below the statutory minimum; the Supreme Court held that this was, except perhaps in rare and exceptional circumstances, not a permissible option. [ 57 ] While a reduction in penalty remains a viable remedy where the penalty would be above the minimum, there are practical problems with it.

In some cases, factors which would be considered aggravating become known during the course of the trial: elevated blood-alcohol readings, perhaps, or that the accused caused an accident. Other factors, such as a related criminal record, may well not become known to the trial judge until sentencing. The trial judge, then, often does not know during the trial whether or not the appropriate sentence will be the minimum, or greater than that. If it appears that it will likely be the minimum, then the Charter remedy of a reduction in sentence is not available.

In the present case, for example, were I to convict the accused and sought to reduce his penalty to remedy the breach of his right not to be wrongfully detained, I would find it difficult to conclude at this stage in the proceedings that I could do so.

At this point, I know of no factors which would suggest to me that a punishment beyond the minimum would be appropriate: the accused’s driving was fine, he did not cause an accident, he pulled over promptly, safely and properly when the police directed him to do so, he was co-operative with police, and his readings were not in the range where Parliament has directed that I consider them to be an aggravating factor. [ 58 ] It may well be that if I convicted the accused and proceeded to sentencing, I would hear something that convinced me to increase the accused’s punishment.

That would then give me leeway to provide a remedy for the Charter breach by reducing the penalty. However, I would be reluctant to suspend the provision of a Charter remedy until sentencing in the hope that there are aggravating factors. I think there are at least two problems with so doing. [ 59 ] The first problem is that if there are no aggravating factors, then the accused receives no remedy. Depending on the nature and severity of the breach, this may well not be acceptable.

This assumes, of course, that there is in fact no other remedy, an assumption which I will address further below. [ 60 ] The second difficulty I see with suspending the remedy until sentencing in the hopes of finding aggravating factors is that it might give rise to the appearance that the Court is finding aggravating factors where there are none, in order to grant a reduction of sentence.

That is, an accused might be left wondering whether they have actually received a remedy, or if they have been left with precisely the same sentence they would have received had there been no breach, but with more window dressing. 5.2.2 - time served [ 61 ] Another remedy which has occasionally been employed involves sentencing the accused to jail, time served, in the length of time spent in police custody. This occurred, for example, in R. v. Price [16] . [ 62 ] In that case, the accused appears to have been convicted of driving over .08.

After providing breath samples he was held in breach of his Charter rights for a further six hours by the police. The trial judge imposed a sentence of time served, being the time spent in police custody. The trial judge noted that by granting this relief for the Charter violation, he was in effect saving the accused $600.00 (that being the statutory minimum fine at the time) [17] . The decision was affirmed on appeal.

[ 63 ] I am not persuaded that this is an appropriate remedy for general application. I am concerned that it might be seen by the police as giving them licence to punish persons prospectively. That is, I worry that the Court would in effect be endorsing the punishment decision that had been made, inappropriately, by the police. This remedy might well not result in the police changing their ways, but rather be seen by them as a tacit endorsement of their decision to hold the person.

If the police hold an accused overnight in violation of their Charter rights and the Court then sentences that accused to time served, is the message being heard by the police, “you shouldn’t have done that,” or is the message rather, “you did exactly the right thing”? If the message received is the latter, regardless of what is intended to be sent, then obviously police conduct will not change and in fact use of this remedy will encourage that misconduct.

Furthermore, if public perception is that the Court is endorsing the police’s prospective punishment of unconvicted accused in violation of the Charter , that sends an inappropriate message about the value of Charter rights. [ 64 ] Accordingly, while I see this remedy as a very useful one in specific circumstances, I do not think it appropriate as a remedy of common application in these cases. 5.2.3 - costs [ 65 ] Another potential remedy for Charter violations is the awarding of costs against the Crown.

There is no doubt but that the Court has jurisdiction to do so in appropriate cases: in R. v. 974649 Ontario Inc. c.o.b. as Dunedin Construction (1992) [18] (hereinafter “Dunedin” ), a unanimous, nine-member decision of the Supreme Court of Canada held that a provincial

summary-offence court had the power to award costs against the Crown for breaching an accused’s Charter rights by failing to provide proper disclosure. [ 66 ] In that case, a Justice of the Peace was trying an alleged violation of Ontario’s Occupational Health and Safety Act . The Justice of the Peace ordered the Crown to provide certain documents, which the Justice found had been withheld in violation of the accused’s Charter rights. There was additionally, as a Charter remedy, an order that the Crown pay certain costs to the accused arising from the non-disclosure.

The Supreme Court held that the Justice of the Peace had the power to order such a remedy, stating, “such awards, while not without a compensatory element, are integrally connected to the court’s control of its trial process and intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure.” [19] [ 67 ] The Provincial Court of Saskatchewan has been found to have the power to award costs for a Charter breach by the Court of Queen’s Bench on at least two occasions: see R. v. Kelln [20] and R. v. Abrey [21] .

Both were cases of costs being awarded by this Court against the Crown for failure to disclose. [ 68 ] While a remedy of costs is therefore available, I am not satisfied that it is appropriate for a case of arbitrary detention such as this. In the excerpt from Dunedin quoted above, the Supreme Court indicated that the costs award was justified for two reasons: (1) to compensate the accused; (2) to discipline the Crown and encourage it to comply with its disclosure obligations. [ 69 ] The second objective could be rephrased to refer to encouraging the Crown to comply with its Charter obligations generally.

So phrased, it clearly would apply to a case of arbitrary detention. [ 70 ] However, the first objective of costs as outlined by the Supreme Court is not as obviously connected with a situation of arbitrary detention. Unlike an accused having to make a specific application to court due to non-disclosure, likely with attendant adjournments and further court appearances, an arbitrary detention carries with it no obvious financial costs to the accused.

There might be some additional cost involved through a need for defence counsel to prepare and argue the issue, but nothing further. [ 71 ] In addition, the Supreme Court seemed to indicate in Dunedin that the awarding of costs was being endorsed as a tool for the court to control the trial process: “such awards, while not without a compensatory element, are integrally connected to the court’s control of its trial process ” [22] (emphasis added).

The same point is made in Kelln , where it was held that the power to award costs for a Charter breach was “part of the court’s inherent ability to control the trial process.” [23] Similarly, in R. v. Foster [24] , the Ontario Superior Court of Justice noted that the ability of the Court to award costs for a Charter breach was, among other objectives, “to assist in the control of its trial process.” [25]

[ 72 ] It therefore being the case that a significant aspect of the costs power is to control the court process, I question whether it would be appropriate to award costs for a Charter violation which occurred prior to the court process even beginning. I cannot say that it would be inappropriate in all cases, but in my opinion it would not be an appropriate use of the costs power to use it as a Charter remedy in the case before me. 5.2.4 - damages 5.2.4.1 - availability of the remedy [ 73 ] The Supreme Court of Canada, in Vancouver v.

Ward [26] , has recently indicated that damages are in some circumstances available as a remedy for Charter violations. Ward was a civil case arising out of the Vancouver police performing a strip search on the plaintiff and seizing his vehicle, both in violation of s. 8 of the Charter (freedom from unreasonable search and seizure), and holding the plaintiff in custody for four and a half hours in violation of s. 9 (freedom from arbitrary detention or imprisonment). [ 74 ] In Ward , the Supreme Court indicated a willingness to consider damages as a remedy for Charter breaches in appropriate cases.

It stated that this was an area which would have to be developed: “granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally.” [27] [ 75 ] Under Ward , in order to determine if damages are an appropriate remedy, they must serve three interrelated functions: (1) compensation of the victim; (2) vindication, or exemplifying the importance of Charter rights; (3) deterrence, to seek to prevent further breaches of a similar nature. [28] It is not necessary that all three functions be required in a given situation.

The severity of the need for one or more functions can compensate for the absence of another factor [29] .

However, even if damages are justified, they may still be inappropriate or unjust. [30] There are at least two possible reasons for damages, even if justified, not to be awarded: (1) the existence of alternate remedies which adequately meet the three functions of a remedy in a particular case [31] ; (2) concerns for good governance, which may be frustrated by an award of damages [32] . [ 76 ] Reason one suggests that damages are to be considered a last resort as a remedy, to be used only if no other remedy adequately addresses the three functions of a Charter remedy.

However, the Supreme Court is clear that it is not for the claimant to justify the damages remedy versus other remedies; rather, it is for the state to show that another remedy would be more appropriate [33] . 5.2.4.2 - jurisdiction of the Provincial Court of Saskatchewan [ 77 ] It is not every tribunal which has the jurisdiction to award damages as a Charter remedy. The Supreme Court makes it clear that not all tribunals which find Charter breaches can grant all remedies. This proposition, as outlined in R. v.

Conway [34] , is repeated in Ward : “the appropriate forum for an award of damages under s. 24(1) is a court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the power to award damages.” [35] [ 78 ] Jurisdiction is addressed in two brief paragraphs in Ward [36] , one of which is primarily concerned with procedure and the other of which states: Generally, the appropriate forum for an award of damages under s. 24(1) is a court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the power to award damages.

Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1). [ 79 ] On the face of it, this would appear to prohibit this Court from awarding damages as a remedy for Charter breaches. On

closer examination, however, this turns out not to be the case. The second clause of the final sentence, “and thus do not have the power . . .” (emphasis added) is clearly a conclusion drawn from the initial clause of that sentence, namely the assertion that provincial criminal courts do not have inherent or statutory power to award damages. The proposition, more clearly stated, is therefore that if a court does not have inherent or statutory power to award damages, then it does not have the power to award damages under s. 24(1).

That proposition is clearly applicable with respect to some courts: Saskatchewan’s Traffic Safety Court, for example, or Ontario’s Court of Justice. The Saskatchewan Provincial Court, on the other hand, not only has a general civil jurisdiction but also has specific statutory jurisdiction to award damages [37] . [ 80 ] The issue of jurisdiction can also be approached from another direction. In Dunedin , the Supreme Court considered jurisdiction for Charter remedies generally. That case laid down guidelines for determining whether or not a particular body had jurisdiction for a particular remedy.

The question is, “whether the court or tribunal, by virtue of its function and structure, is an appropriate forum for ordering the Charter remedy in issue.” [38] [ 81 ] In deciding that question, it must be determined whether the legislature which created the tribunal or court has “furnished the court or tribunal with the tools necessary to fashion the remedy sought under s. 24 in a just, fair and consistent manner without impeding its ability to perform its intended function”.

There are several suggested factors: 1. whether the proceedings are judicial or quasi-judicial; 2. the role of counsel; 3. the applicability or otherwise of traditional rules of proof and evidence; 4. whether the court or tribunal can issue subpoenas; 5. whether evidence is offered under oath; 6. the expertise and training of the decision maker; 7. the institutional experience of the court or tribunal with the remedy in question; 8. the workload of the court or tribunal; 9. the time constraints of the court or tribunal; 10. the ability of the court or tribunal to compile an adequate record for a review in court. [39] [ 82 ] The Provincial Court of Saskatchewan clearly meets nine of the ten criteria specified.

The only issue which could arise from this might be item seven, “the institutional experience of the court or tribunal with the remedy in question.” All judges of this Court are familiar with civil remedies, and in particular damages, through The Small Claims Act,1997 .

It might seem to be a difficulty, however, that the Act states, “This Act does not apply to a claim for libel, slander, malicious arrest, malicious prosecution or false imprisonment.” [40] Does this indicate that the Legislature of Saskatchewan intended, to enunciate the Dunedin test, that this Court not be able to award damages as a Charter remedy for a violation of s. 9 ? [ 83 ] In my view, it does not. Subsection 3(9) has no bearing on jurisdiction for this remedy. It does not prohibit damages; rather, to repeat, it states that the Act as a whole does not apply to claims for, inter alia , false imprisonment.

To argue, therefore, that s. 3(9) removes this Court’s jurisdiction to award damages for arbitrary detention is to argue that this Court has no jurisdiction whatsoever to deal with such a Charter breach of arbitrary detention in any way. [ 84 ] In other words, because s. 3(9) does not refer to damages for false imprisonment but rather to jurisdiction over false imprisonment generally, any person attempting to argue that s. 3(9) removes this Court’s jurisdiction to award damages for arbitrary detention is necessarily arguing that we have no jurisdiction to award any remedy at all for arbitrary detention, including a stay.

No one has suggested that there is any such difficulty in this Court, and indeed the jurisprudence is solidly against such a proposition. Accordingly, s. 3(9) is not relevant to the question of whether or not this Court may award damages for a Charter breach. [ 85 ] I therefore conclude that this Court has jurisdiction to award damages for a s. 9 breach, and that it is an available remedy in the particular matter before me.

5.2.4.3 - appropriateness of the remedy to the present case [ 86 ] The next question is whether or not I should make such an award in this case, bearing in mind the admonition in Ward referred to above, that damages are a remedy where other available options have been considered and rejected. I have not found another remedy appropriate to this accused in this situation. The only other step I might take would be to leave the question of a damages remedy open, for the accused to pursue in a civil action. [ 87 ] Such a course was discussed by the Supreme Court extensively in Dunedin .

The Court indicated that unnecessarily multiplying proceedings was to be avoided, and indeed might result in a denial of a remedy as a practical matter for many accused: It may be unrealistic to expect criminal accused, who often rely on legal aid to mount a defence against the state, to bring a separate action in the provincial superior court to recover the costs arising from the breach of their Charter rights.

This option, while available in theory, may far too often prove illusory in practice. [41] Indeed, a failure to recognize this jurisdiction may arguably result in far more disruption of the administration of justice, by requiring resort to another forum to obtain an appropriate and just remedy, with all the attendant delays, expense and inconvenience.

More importantly, it may, as a matter of practical reality, deprive an accused of an appropriate and just remedy for even flagrant violations of his or her Charter rights, and thus render illusory both these guaranteed protections and the promise of their enforcement. [42] [ 88 ] There is no good reason why this accused should have to bring a separate action for damages to address this Charter breach. As a result of the trial before me, I am familiar with the circumstances of the case, the background to the breach, and the facts of the breach itself.

Another trial would increase the delay between the breach and the remedy, would increase the costs to both the accused and the Crown, and would not furnish the new trial judge with any more or better information than I have regarding the breach of the accused’s rights. [ 89 ] I note in passing that another advantage of damages as a Charter remedy, and another reason for providing for such a remedy in the context of the criminal trial itself, is that damages can be applied at any stage in the proceedings.

A reduction in sentence for an offence with a statutory minimum, for example, is only available if the circumstances would otherwise give rise to an increased penalty above the minimum, which the trial judge may well not know until sentencing - at which point the opportunity for other remedies has passed.

If damages are available as a remedy, however, then the court could delay deciding upon a remedy until sentencing: if reducing the sentence was available, that could be the remedy, but if not, then damages could then be awarded. 5.2.4.4 - quantum [ 90 ] With respect to quantum, the award must address the three objectives of compensation, vindication and deterrence. The three should not be the subject of separate awards, although it may be useful to consider each head separately.

Ultimately, what is sought is one amount which is reasonable in light of, and properly balances, all three objectives. [ 91 ] With respect to compensation, although awards regarding false arrest and wrongful imprisonment are not directly on point, they can at least provide a starting point. Given their limited utility, I do not propose to spend a great deal of time reviewing them, however. In Sangha v. Home Depot of Canada Inc. [43] , a businessman was detained for about 45 minutes, photographed and banned from the store in question. He was awarded $4,000.00.

Other cases, somewhat older, have awarded damages of $500.00 to $1,500.00 for brief periods of in-store “imprisonment” [44] . In the case before me, of course, the accused was held for longer, by the police directly and in an actual cell as opposed to being “confined” within an office or a store.

[92] Vindication will be provided, I believe, through the denunciation of the Court and the awarding of damages. At least withrespect to this accused in these circumstances, I do not think this objective to be particularly significant in monetary terms. [93] Deterrence is an issue of particular significance on the facts before me. I have expressed above my view of the police actions,and their lack of any attempt to explain or justify them. I have also indicated in passing the large number of similar cases which havebeen before the courts in recent years.

One of the significant benefits of damages as a remedy for this type of behaviour is that they arescalable: that is, if police conduct does not respond to awards in a certain range, then in subsequent cases the damages can be increased. This is one of the advantages this remedy has over, for example, the stay of proceedings which defence understandably would prefer.

One implication of that benefit is that the amount awarded for deterrence in early cases with respect to a particular wrong should berelatively small, to see if state conduct changes; if it does not, then such amounts should be increased in later cases as required toencourage state compliance with the Charter right in question. [94] Taking all of these factors into account, I have concluded that an appropriate award of damages as a remedy for the breach ofthe accused’s s. 9 Charter rights in this case is $5,000.00, and I direct that the Crown pay the same to the accused within 30 daysfollowing the expiration of all applicable appeal periods. 6.

Conclusion [95] I therefore find the accused not guilty. I further order the Crown to pay to the accused $5,000.00 within 30 days of theexpiration of all applicable appeal periods, as a remedy for breach of his s. 9 Charter rights. __________________________ Q.D. Agnew, J [1]See, for example, R. v. Appleby, 2010 ABQB 674 at para. 17 [2] Chartier v. Quebec (Attorney General), (SCC), [1979] S.C.J. No. 56, [1979] 2 S.C.R. 474, 104 D.L.R. (3d) 321, 27N.R. 1, 48 C.C.C. (2d) 34; R. v. Cooper, [1993] O.J. No. 501, 46 M.V.R. (2d) 231, 19 W.C.B. (2d) 9 (Ont. C. J. - Prov.

Div.) [3]2009 SCC 32 , [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32. [4]See, for example: R. v. Vanderbruggen, (ON CA), [2006] O. J. No. 1138 (Ont. C. A.) at para. 23; R. v. Phillips, (ON CA), 42 C.C.C. (3d) 150, 64 C.R. (3d) 154, 44 C.R.R. 244, 27 O.A.C. 380 (Ont. C. A.); R. v. Mudry,1979 ABCA 286 , [1979] A.J. No. 613, 19 A.R. 379, 50 C.C.C. (2d) 518 (Alta. C. A.) at para. 18. [5]See, for example: R. v. McCoy, (SK KB), [1990] S.J. No. 657, 86 Sask.R. 204, 24 M.V.R. (2d) 245, 10 W.C.B.(2d) 511 (Q.B.). [6]See, for example: R. v. Otto, [2000] O. J. No. 1854, 46 W.C.B. (2d) 329 (Ont. S.C.J.); R. v.

Davison [2001] N.S.J. No. 605(Prov. Ct.); R. v. Baird, [2005] S. J. No. 225, 2005 SKPC 27, 264 Sask. R. 161, 64 W.C.B. (2d) 627(Prov. Ct.).

[7]R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411 at paras. 84: “It must always be remembered that a stay of proceedings isonly appropriate ‘in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defence cannot be remediedor where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.” See also: R. v.Carosella, [1997] 1 S.C.R. 80, ,31 O.R. (3d) 575, 142 D.L.R. (4th) 595, 112 C.C.C. (3d) 289, 4 C.R. (5th) 139, 41C.R.R. (2d) 189, 98 O.A.C. 81; R. v.

Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, 201 N.S.R. (2d) 63, 209 D.L.R. (4th) 41, 161 C.C.C.(3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51. [8]2010 SCC 6 , 2010 S.C.C. 6, [2010] 1 S.C.R. 206 [9]Ibid., para. 17 [10]R. v. Schemenauer, (SK KB), [1986] S.J. No. 840, 54 Sask. R. 171, 46 M.V.R. 268, 1 W.C.B. (2d) 84; R. v. Bender, 2002 SKPC 28; R. v. Fox, [2007] S.J. 307, 2007 SKPC 61, 297 Sask. R. 203; 157 C.R.R. (2d) 179, 74 W.C.B. (2d) 49; R. v. Holbrook, 2008 SKPC 133 , [2008] S.J. No. 615, 2008 SKPC133, 76M.V.R.(5th) 256, 323 Sask. R. 241; R. v. McKelvey, [2008] A.J.

No. 924, 2008 ABQB 466, 79 W.C.B. (2d) 17, 94 Alta. L. R. (4th) 348; R. v. Wilcox, (2008, unreported). [11]R. v. Charles (1987), 7 L.W. 722-004 (Sask. C. A.); R. v. Lloyd, (Sask. C. A., no citation or year provided in brief); R. v. Paquette, [2002] S.J. No. 613, 2002 SKQB 427, 101 C.R.R. (2d) 366, 225 Sask. R. 161; R. v. Schemenauer, (Sask. C.A., no citation oryear provided in brief, apparently reversing the Queen’s Bench decision referred to in the immediately-preceding footnote. A citation orcopy of the decision would therefore have been helpful); R. v. L. (S.L.), [2003] C.C.S. No. 4430, [2002] S.J.

No. 774, 2002 SKQB 425;R. v. Scharf (2005), 2005 SKQB 287 , 272 Sask. R. 250 (Q.B.); R. v. Donald (No. 2), 2010 SKPC 123, [2010] S.J. No. 564. [12]2010 SKPC 123 , [2010] S.J. No. 564 at paragraph 42. [13]Fox, supra., para. 23. [14][1986] 1S.C.R. 863, , 29 D.L.R. (4th) 161, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1, 21 C.R.R. 76, 16 O.A.C. 81. [15]At page 887. [16]2010 ONSC 1898 , 2010 Carswell Ont 2369 (Ont.

Superior Court of Justice), affirming an unreported 2009 decision. [17]Para. 96. [18] [2001] 3 S.C.R. 575, 2001 SCC 81, 56 O.R. (3d) 359, 206 D.L.R. (4th) 444, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d)189, 154 O.A.C. 345. [19]Paragraph 81. [20][2003] S.J. No 529, 2003 SKQB 348, 236 Sask. R. 167. [21][2007] S.J. No. 331, 2007 SKQB 213, 297 Sask. R. 313. [22]Paragraph 81. [23]Paragraph 7. [24] (ON SC), [2003] O.J.

No. 1133, 64 O.R. (3d) 152. [25]Paragraph 6. [26]2010 SCC 27, [2010] 2 S.C.R. 28. [27]Paragraph 21. [28]Paragraph 25. [29]“. . . the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication ordeterrence clearly call for an award.” (para. 30); “. . . the award must be functionally required to fulfill one or more of the objects ofcompensation, vindication of the right, or deterrence of future Charter breaches.” (para. 32). [30]Paragraph 33. [31]Paragraph 34.

[32]Paragraphs 38 - 43. [33]Paragraph 35: “The claimant need not show that she has exhausted all other recourses. Rather, it is for the state to show that otherremedies are available in the particular case that will sufficiently address the breach.” [34]2010 SCC 22, [2010] 1 S.C.R. 765. [35]Paragraph 58. [36]Paragraphs 58 and 59. [37]See The Small Claims Act, 1997, S.S. c. S-50.11, and in particular s. 3(1)(a). [38]Paragraph 35. [39]Paragraph 45. [40]Subsection 3(9). [41]Paragraph 81. [42]Paragraph 88. [43]2005 BCPC 300. [44]Kovacs v. Ontario Jockey Club, (Ont. S.C.) at paras. 115 - 120.