Her Majesty the Queen - v. -, 2014 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 170 Date: October 17, 2014 Information: 24292182 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Gordon Byrne Appearing: Barry Nychuk For the Crown Andrew Wyatt For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Byrne is charged with driving while impaired by alcohol and while over .08. Just before 11:00 p.m. on July 26, 2013, Mr.

Byrne was driving his vehicle in the employee parking lot of the Potash Corporation of Saskatchewan’s mine at Rocanville. This is a private parking lot, which is not a “highway” as defined under s. 2(1)(

k) of The Traffic Safety Act , RSS 2004, c T-18.1. [ 2 ] Cst. Indenbosch was on patrol in this parking lot, and followed Mr. Byrne in his police vehicle through a portion of the lot.

He noted Mr. Byrne’s licence plate, and entered it into his computer as he drove. Given a mistake he made in entering the number, the computer police program indicated to him that this plate had expired, when in fact the plate was valid. [ 3 ] Mr. Byrne stopped in a parking stall. The officer stopped behind him, and called out to Mr. Byrne, who had exited his vehicle, that his plate had expired. Mr. Byrne denied this. The officer then approached him on foot, and, based on his discussions with Mr.

Byrne and his observations of him, subsequently arrested him for impaired driving and demanded a breath sample. [ 4 ] The issue in this case, according to counsel, is narrow. Did the officer’s actions violate Mr. Byrne’s rights to be free from arbitrary detention and unreasonable search and seizure, contrary to s. 9 and 8 of the Charter ? If so, should the evidence from the point of initial contact between the officer and Mr. Byrne be excluded under s. 24(2) of the Charter ? [ 5 ] The defence contends this case falls squarely within the principles articulated in R v Lux [1] [ Lux ].

In that case, the Saskatchewan Court of Appeal found that The Traffic Safety Act did not authorize a police officer to conduct a random stop of a motorist on a private parking lot. The Crown, relying in large part on R v Papilion [2] [ Papilion ], argues there was no violation of the Charter in this case, as Mr. Byrne was not detained for a Traffic Safety Act purpose, but rather only after the officer had reasonable grounds to believe he was driving while impaired. [ 6 ] Cst. Indenbosch was the only witness to testify on the Charter voir dire . His evidence was applied to the trial. II. BACKGROUND [ 7 ] Cst.

Indenbosch entered the parking lot through the kiosk gate, and was allowed through by the attendant at the gate. He said members of his detachment had been asked by representatives from the Potash Corporation of Saskatchewan to show a presence at the mine site, as there had been a variety of incidents that the police had been called to. He said he attended at the parking lot this evening to show a police presence, and to check licence plates to see who was present at the mine site (possibly there might be a warrant out for someone) and to see if any of those plates had expired.

On cross-examination it was suggested to him that in checking licence plates he was checking for violations of The Traffic Safety Act , and he agreed. [ 8 ] Upon entering the parking lot, Cst. Indenbosch patrolled through the parking lot and saw a red truck which turned out to be operated by Mr. Byrne. He followed the truck, entered the licence plate and, because of his mistake, received a message that the plate was expired. Mr. Byrne soon pulled into a parking spot and the officer pulled in behind Mr. Byrne, without engaging his emergency lights or siren. When asked whether Mr.

Byrne could have backed up, he said that, with some manoeuvring, Mr. Byrne could have got past his police vehicle. In considering the officer’s evidence, I am satisfied that he pulled behind Mr. Byrne in a way that he clearly would have been visible to Mr. Byrne and would potentially have blocked Mr. Byrne’s direct exit from the spot. [ 9 ] The officer said Mr. Byrne got out of his vehicle, and the officer called to him: “Hey buddy, your plates are expired”. Mr. Byrne responded that they were not. The officer said, at this point, Mr.

Byrne was swaying on his feet and he thought this was odd. [ 10 ] The officer walked over to Mr. Byrne, and Mr. Byrne again claimed that his plates were valid and that he had stickers in his car which would prove that. The officer told him not to get into his truck, but rather asked him to proceed to the rear of the vehicle. At the time of discussing the sticker in Mr. Byrne’s car, the officer said Mr. Byrne’s speech was slurred and he smelled alcohol coming from him. When they walked together to the back of the truck, the officer said Mr.

Byrne was very unsteady on his feet and he denied to the officer that he had been drinking. At this point, the officer arrested Mr. Byrne for impaired driving. [ 11 ] On cross-examination, Cst. Indenbosch was asked whether he was aware of the Court of Appeal’s ruling in Lux . He responded that he was not, at the time of this incident, but became so soon after when he was told by his superiors at the RCMP Detachment not to pursue such surveillance in a private parking lot. As a result, he had not done so since this evening last year.

III. WAS MR. BYRNE ARBITRARILY DETAINED? [ 12 ] The Crown argued that Mr. Byrne was not detained when Cst. Indenbosch pulled behind him, as the officer was, in effect, involved in neighbourhood preventative policing and was only making general inquiries which were of no threat to Mr. Byrne’s freedom of choice regarding his own liberty (see R v Grant , 2009 SCC 32 at paras 40-5 , [2009] 2 SCR 353 [ Grant ]). The Crown further argued that Mr. Byrne was not detained, at the earliest, until the officer asked Mr. Byrne to walk to the back of the vehicle.

For the reasons that follow, I disagree. [ 13 ] In support of its argument, the Crown relied on Papilion . In that case, a police officer was on general patrol and saw a vehicle on a residential street which led into a park. The officer was concerned about break and enters which had occurred to vehicles around the park. He lost sight of the vehicle in question, but later came upon it and saw a head bob up and down in it.

He pulled in behind the vehicle, which was parked on a public road (and hence a “highway” under the Act ) and not a private parking lot. [ 14 ] The officer approached the driver’s side window, smelled alcohol coming from the vehicle and then spoke to and made observations of Mr. Papilion which led the officer to arrest him for impaired driving. Herauf J.A. held that Mr.

Papilion was not detained when the officer parked behind him and that the detention took place, at the earliest, when the officer arrived at the vehicle window and began asking questions. [3] [ 15 ] In considering the Papilion case, it is clear that a premise of the ultimate decision on detention was that the officer was not acting “pursuant to a traffic safety purpose” before questioning Mr. Papilion, and hence that s. 209.1 of The Traffic Safety Act was not applicable. [4]

Section 209.1 of The Traffic Safety Act provides the authority for a police officer to stop and question a motorist. In R v Houben [5] , Madame Justice Jackson, in referring to a similar provision in the previous Highway Traffic Act , defined the scope of this authority to detain as being when a police officer is “checking for ‘sobriety, licences, ownership, insurance and mechanical fitness of cars’”. [6] [ 16 ] While I accept that the officers at the Moosomin Detachment had been asked by representatives of the Potash Corporation of Saskatchewan to, in Cst.

Indenbosch’s words: “show a presence” at the mine site, it is clear that there was no specific request to attend to the mine on this day. The officer said he was there to show a presence, to check licence plates and to see who was there. Given that, upon entering the parking lot, he soon began checking Mr. Byrne’s licence plate, I am satisfied that the officer’s primary purpose for attending to and entering this parking lot was for a traffic safety purpose, to enforce The Traffic Safety Act . [ 17 ] Further, when Cst. Indenbosch embarked on an investigation of what he wrongly believed to be Mr.

Byrne’s expired plate, followed him and stopped behind his vehicle, I am as well satisfied that the officer was purporting to exercise authority under s. 209.1 of the Act , authority which he did not have as he had only seen Mr. Byrne driving in a private parking lot, and not on a highway. [ 18 ] I am further satisfied that, when the officer pulled behind Mr. Byrne, and told him that his plates were expired, Mr. Byrne was detained from this point onwards. That is because I am satisfied that: (1) a person in Mr.

Byrne’s position would believe that they had no choice but to comply with the officer’s suggestions or inquiries; and (2) a person in this position would conclude that he had been singled out by the officer for a focussed investigation (see para. 44 of Grant , where the Supreme Court set out some of the factors which pointed to psychological detention). [ 19 ] Because there was not lawful authority for this detention, I am satisfied that Mr.

Byrne was arbitrarily detained, contrary to his right to be free from this under s. 9 of the Charter , from the point the officer pulled behind him and told him his plates were expired. As a result, his right to be secure from unreasonable search and seizure under s. 8 was as well violated from that point onwards. IV. SHOULD THE EVIDENCE FOLLOWING THE BREACH BE EXCLUDED?

[20] In Lux, Chief Justice Klebuc excluded the evidence obtained during the detention, as he found the seriousness of theunauthorized detention, coupled with the deprivation of Ms. Lux’s “freedom and privacy by means of an unconstitutional detention” outweighed society’s interest in an adjudication of the case on its merits, and would bring the administration of justice into disrepute.[7] [21] In this case, I have reached a similar conclusion.

While I don’t find that the officer acted in bad faith, clearly his superiorswere of the view that he should not have engaged in this type of surveillance in a private parking lot, and quickly told him so. In total,when I consider the seriousness of this unauthorized detention together with the impact on Mr.

Byrne’s freedom and privacy interests - ashe was operating and parking his registered vehicle in a private employee’s parking lot - I am satisfied that these factors outweighsociety’s interest in an adjudication of the case on its merits. [22] In my view, admission of all evidence from the point this officer stopped behind Mr. Byrne would bring the long-termadministration of justice into disrepute. I exclude that evidence pursuant to s. 24(2) of the Charter. V. CONCLUSION [23] As I have excluded all evidence from the point the officer stopped behind Mr.

Byrne, I am left with a reasonable doubt as tohis guilt on both charges, and he is found not guilty on counts #1 and #2. R. Green, J [1] 2012 SKCA 129, 405 Sask R 214. [2] 2014 SKCA 45. [3] Ibid, at para 33. [4] Ibid, at para 22. [5] 2006 SKCA 129, 289 Sask R 118. [6] Ibid at para 65, where Jackson J.A. referred to the scope of detention in similar traffic legislation adopted by the Supreme Court ofCanada in R v Mellenthin, (SCC), [1992] 3 SCR 615. [7] Supra note 1 at paras 58-65.