Her Majesty the Queen - v. -, 2010 SKPC 152

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 152 Date: December 7, 2010 Information: 24180756 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nicholas Synkiw Appearing: Dorinda Stahl For the Crown Timothy Hawryluk For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Nicholas Synkiw, is charged on Information 24180756 that he:

a) On or about the 11 th day of July, 2009, near Saskatoon, in the Province of Saskatchewan, while his ability to operate a motor vehicle

was impaired by alcohol, did operate a motor vehicle contrary to s. 253(1)(

a) of the Criminal Code;

b) On or about the 11th day of July, 2009, near Saskatoon, in the Province of Saskatchewan, having consumed alcohol in such a quantitythat the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehiclecontrary to s. 253(1)(

b) of the Criminal Code. [2] At the outset of the trial, Defence counsel advised that he would be arguing that the accused’s sections 8 and 9 Charterrights were violated in this case and that any pertinent evidence obtained as a result of those breaches should be excluded under s. 24(2)of the Charter. The Crown acknowledged receiving proper notice of these Charter challenges. The Court was not given any indicationas to the specifics of the alleged Charter breaches except that they involved sections 8 and 9. [3] The trial commenced with a voir dire to deal with these Charter issues.

The Crown called Constables Kisters and Comleyon the voir dire and the Defence called no evidence. Following the voir dire but before closing argument on the issues on the voir dire,Crown and Defence agreed that all evidence from the voir dire could be applied to the trial proper. The Crown then advised that theyhad no further witnesses on the trial proper and they closed their case. Defence advised that they had no evidence to call on the trial andthey closed their case. [4] Both counsel indicated that they preferred to provide written submissions in this case rather than make oral argument.

Ireceived extensive briefs from Crown and Defence on the points they wished to argue. [5] In his brief, Defence counsel argued that Constable Kisters did not have the appropriate grounds upon which to make anapproved screening device demand and as such, the sample provided into the roadside device was an unreasonable seizure of theaccused’s breath and a violation of

section 8 of the Charter. [6] At one point in his brief, Defence argued that the

section 9 Charter breach flowed from the

section 8 breach. That is, sincethe officer did not have the proper grounds to make the approved screening device demand, the resultant detention was thereforearbitrary and a breach of

section 9 of the Charter. However, at another point in his brief, Defence counsel appeared to take the positionthat after the initial stop of the accused he was improperly detained for investigative reasons and that this was the

section 9 breach. [7] Crown counsel, in her written argument, addressed the sections 8 and 9 breaches together. In her opinion, Constable Kistershad sufficient grounds upon which to make the approved screening device demand. Based on the fail reading on the device, the officershad the appropriate basis to detain the accused and demand a breath sample into an approved instrument. [8] In light of the evidence in the trial, the

section 8 Charter issue was properly framed by counsel but the

section 9 Charterissue was not. In my view, the real question was whether the initial stopping of the accused was an arbitrary detention. Since neithercounsel addressed this issue in their briefs, I invited them to make oral and written submissions on this point if they wished and Iadjourned my decision. Both counsel made oral argument and filed written argument and/or case law supporting their respectivepositions on this issue. [9] While the Crown argued that the officer did have a valid reason for stopping the accused, their first position was that theCourt did not have the power to entertain this argument.

It was their view that they were not made aware by the Defence that the accusedwould be taking issue with the initial stop and they did not address their questioning of the witnesses on this point. To raise the issuenow was prejudicial. Had they realized it was a live issue, they may have asked other questions of the witnesses or may have calledother witnesses to establish that the stop was legal. To support their position, they referred the Court to the cases of R. v. Pelletier, (SK CA), [1995] S.J. No. 115 (Sask. C.A.) and R. v. Renny (2007), Q.B.C.A. No. 29 (Sask.

Q.B.). [10] The Renny case is of no help to me on this issue of whether the Crown has been denied the opportunity to properly canvassthe issue I raised. In Renny, supra, the learned trial judge rendered a decision acquitting the accused. However, the basis for hisacquittal was not an issue that either Defence or Crown had made any argument on. The trial judge did not identify this as an issue to

either counsel nor did he reconvene the case for further oral argument or invite counsel to make written argument on this point. Insetting aside the acquittal and sending the matter back for a new trial, the

summary conviction appeal court said at paragraph 6 of thejudgment: [6] I have read and scrutinized the transcript of the testimony and of the submissions of counsel. I cannot say that accused’s counselraised the issue the learned trial judge decided the case on. I cannot say that Crown counsel was alerted to the issue the learned trialjudge decided the case on. I cannot say Crown counsel argued the matter on the basis of that issue.

I cannot say Crown counsel wouldnot have presented his case differently or additionally to deal with that issue. [11] In Renny, supra, the Crown (and the Defence) was taken by complete surprise with the trial judge’s decision and the issue heidentified. This case is much different than the situation in the present case. In the present case, I raised the issue based on the evidencethat I heard at the trial. Both counsel and myself asked questions about the reason for the initial stop of the accused.

I identified theissue for counsel and gave counsel every opportunity to make argument on the point. [12] The Pelletier case is of some assistance. In Pelletier, supra, the accused was facing, among other offences, drinking anddriving charges. In the course of his trial, the Crown tendered evidence of sobriety tests without objection from the Defence. As aresult, no voir dire was held and the Crown closed its case.

After hearing argument from both counsel, the trial judge ruled that theaccused was not afforded his right to counsel prior to performing the sobriety tests and he excluded the tests from evidence pursuant tosection 24(2) of the Charter. He then went on to acquit the accused of the drinking and driving charges. The

summary convictionappeal court upheld the trial judge’s acquittal. On further appeal to the Saskatchewan Court of Appeal, the acquittal was set aside and anew trial ordered. In reaching their decision, the Court of Appeal, at paragraph 24 of the judgment said: [24] In the case before us the procedure followed with respect to admissibility of co-ordination tests was generally unsatisfactory. As aresult the Crown was unable to properly present its evidence and argument on the essential questions posed on the appeal.

Given thissignificant procedural error we must direct a new trial before another Provincial Court Judge. This is consistent with the decision in R. v.Collins, (SCC), [1987] 1 S.C.R. 265. [13] The principle arising from Pelletier is that trial by ambush is not allowed. Fairness of the trial process dictates that anobjection to the admissibility of evidence must be made when the evidence is tendered.

To allow otherwise would deprive the Crown ofthe opportunity to lead evidence relevant to the issue. [14] In the present case, the Crown was made aware, both at the beginning of the trial and well before the trial date, that theaccused would be alleging breaches of sections 8 and 9 of the Charter and asking for exclusion of the evidence under section 24(2). I was not advised of the specifics of the Charter application or of any agreement by counsel to limit the scope of the application. As thevoir dire proceeded it became apparent to me that the basis for the stop of the accused’s vehicle was a live issue.

There were only twoofficers who dealt with the accused at the roadside - Constable Kisters and Constable Comley. Constable Comley was the officer whonoticed the accused, left the check stop to pursue the accused and stopped the accused. Constable Kisters showed up shortly thereafter toassist Constable Comley. Only Constable Comley could advise why he stopped the accused. I asked some questions of ConstableComley on this issue. Both counsel were given an opportunity to re-examine the officer based on the questions I asked in this regard andboth did re-examine him.

Constable Comley was specific in his evidence as to why he stopped the accused that night. I fail to see howthe Crown is prejudiced or taken by surprise by this issue when they had every opportunity to ask questions about it or call evidence onit during the voir dire. [15] I asked the Crown what further evidence she had on this issue of the stop and she was unable to advise me of any. I asked herwhat further evidence Constable Comley could have provided on this point but she did not point to anything.

If the Crown felt that therewere some further questions she had for Constable Comley concerning his reasons for stopping the accused that she had not asked butnow wanted to ask in light of me identifying this issue, she could have made application to re-open her case. She did not make any suchapplication. [16] The Court is tasked with the ultimate decision of determining guilt or innocence based on the evidence it hears so if the Courtidentifies an issue not addressed by counsel, the Court has a responsibility to raise it with both parties.

If Crown and Defence had anagreement that certain elements of a charge were not in issue and as a result Crown called no evidence on those matters, then the Court

should be advised of that so that they are aware that what they perceive as an issue may not be an issue. This was not the case here. [ 17 ] In this case, the Crown made no application to re-open their case to re-call Constable Comley or Constable Kisters or call any other witnesses to provide anymore evidence about why Constable Comley stopped the accused vehicle to begin with. The point was thoroughly canvassed by myself, the Crown and Defence counsel during the voir dire and I cannot imagine what further witnesses could have been called on this point.

There is no prejudice to the Crown and they are not hampered in any way in their ability to make full argument on this issue. When I raised this issue I was not advised that there was an agreement between counsel that this was not an issue in the case and as such I see no error in considering the arguments I have heard on whether or not the initial stopping of the accused was justified by law. [ 18 ] The issues the Court will deal with then are as follows:

a) Was the stopping of the accused by Constable Comley an arbitrary detention contrary to

section 9 of the Charter?

b) Was there an unreasonable seizure of the accused’s breath contrary to

section 8 of the Charter?

c) If there was a

section 9 and/or

section 8 Charter breach, should the evidence obtained as a result of the breach be excluded pursuant to section 24(2) of the Charter?

d) Is the evidence sufficient to prove that the accused’s ability to operate a motor vehicle was impaired by alcohol? FACTS [ 19 ] On the evening of July 10, 2009, the RCMP had set up a check stop at the intersection of Clarence Avenue and Cartwright Street on the outskirts of the City of Saskatoon. Immediately south of this intersection, Clarence Avenue becomes a rural roadway leading to a number of farms and acreages south of the City. There were no traffic lights at the Clarence Avenue/Cartwright Road intersection nor south of this intersection. The checkstop was well marked.

All police cruisers had their lights on and all officers wore reflective vests. They were stopping all vehicles going north and south on Clarence Avenue and those turning off Cartwright Road. [ 20 ] Constables Kisters and Comley were part of a group of four RCMP officers and an auxiliary officer who were working the check stop that evening. At the time, Constable Kisters had been an RCMP officer for approximately two years and Constable Comley had less than one year of service. [ 21 ] Shortly after midnight Constable Comley noticed a vehicle travelling northbound on the rural road approaching the intersection.

Before it reached the check stop, it made a u-turn and headed back southbound in the direction from whence it had come. The officer could not tell the make or model of the vehicle nor could he see who was driving. All that he could see was that the vehicle was a small car. [ 22 ] As soon as he saw this, Constable Comley ran to the nearest police cruiser, jumped in, turned on his siren and gave chase in order to intercept this vehicle. [ 23 ] Constable Kisters was talking to another officer when he heard Constable Comley take off in the police cruiser.

He observed Constable Comley head southbound from the intersection and saw the taillights of a vehicle in the distance. He watched the police

cruiser close on the vehicle until they both crested a hill and he lost sight of them. As a result, he radioed Constable Comley to see if he needed any assistance. Receiving a positive response he got in another police vehicle and headed in their direction. [ 24 ] The vehicle the two officers were pursuing was not speeding nor did it appear to be trying to evade them. It eventually turned off onto Diana Street and proceeded to almost the end of the street. By this time, Constable Comley had caught up to the vehicle and it stopped in the middle of the road.

Besides this vehicle, Constable Comley had not encountered any other vehicles during his pursuit. [ 25 ] Other than making a u-turn and heading away from the check stop, Constable Comley did not notice anything untoward about the manner in which the vehicle was being driven. He approached the vehicle, a Honda Civic, and found the accused sitting in the driver’s seat. He then proceeded to have the following conversation with the accused: Cst. Comley: Where are you going? Accused: I am going to a friends. Cst. Comley: Who is your friend? Accused: I am going to work. Cst. Comley: Have you been drinking?

Accused: No. [ 26 ] While speaking with the accused, he noted that the accused had glossy eyes, was stumbling with his words and that there was an odour of beverage alcohol coming from the vehicle. As a result of these observations and the answers he had received to his questions, he asked the accused to step out of the vehicle and go back to the police cruiser. His purpose in doing this was to observe the accused’s balance and manner of walking.

When the accused got out of his vehicle it appeared that he had to grab onto it to maintain his balance and while walking to the police cruiser, he was not walking steadily. Based on all of his observations, Constable Comley suspected that the accused had been drinking. He told the accused that he would be investigating him for impaired driving and in the end he would have to come with him. [ 27 ] By this time Constable Kisters had arrived and pulled up behind Constable Comley’s police cruiser. He observed Constable Comley talking to the driver.

He got out and stood at the back of Constable Comley’s cruiser as the accused and Comley came toward him. He noticed the accused stumble at one point and use the car to steady himself. It also appeared to him that the accused was staggering somewhat or unsure of his balance. [ 28 ] Constable Comley then told Constable Kisters that he would like an approved screening device demand made on the accused. Constable Comley was not a qualified ASD operator but Constable Kisters was. Constable Kisters had an approved screening device with him at the time which was properly calibrated.

While Constable Comley patted down the accused and placed him in the back of Constable Kisters’ police cruiser, Kisters went and began preparing the approved screening device for a test. [ 29 ] Constable Comley had not communicated any grounds for an approved screening device demand to Constable Kisters. However, as Constable Kisters was in the patrol car speaking to the accused he could smell an odour of beverage alcohol coming from the accused’s breath. He testified that the accused had bloodshot eyes, but no slurring of speech.

When considered with his previous observations of the accused’s balance, he was satisfied he had the grounds to make an approved screening device demand on him. [ 30 ] Constable Kisters made the ASD demand on the accused at 12:53 a.m. and performed the test immediately thereafter. The accused failed the test and he showed the result to Constable Comley. While in the police car with Constable Kisters and the accused, Constable Comley also noted that the accused had slurred speech, glossy eyes and had an odour of beverage alcohol coming from his breath.

He again asked the accused if he had been drinking to which the accused responded no, but he explained that he cooks with alcohol at work and samples the food when he cooks. On the basis of the fail and his observations, Constable Comley arrested the accused for impaired operation of a motor vehicle and read him his right to counsel and the police warning.

[31] The officers could not take the accused to the Saskatoon RCMP Detachment as their Intoxilyzer was not operational at thattime. While Constable Kisters drove toward the Saskatoon Police Service, Constable Comley contacted the city police to see if theywould be prepared to perform a breath test on the accused. Upon receiving confirmation that they would, he read the accused a breathdemand at 1:11 a.m. The accused agreed to comply with the demand. [32] Once at the city police station, Constable Comley noted that the accused’s walking was not steady and that the accused staredblankly at times.

Constable Kisters noted no problems with the accused’s balance at the city police station. Constable Comley told theaccused he could contact a lawyer however the accused declined. Constable Comley then read the accused a waiver and turned himover to a Saskatoon Police Service breath technician.

The accused provided two samples, the first being .13 and the second .11. [33] After the tests were completed and the accused was served with the appropriate paperwork, the officers took him to theSaskatoon RCMP Detachment where he was held until his father attended to pick him up. [34] Neither officer asked the accused for his driver’s license or registration until he was sitting in the back of the police cruiser. Constable Comley did not have any discussion with the accused about making an illegal u-turn pursuant to the Traffic Safety Act nor didhe issue him a ticket for such a violation.

The accused was polite and cooperative throughout his dealings with the officers. ANALYSIS

a) Was the stopping of the accused by Constable Comley an arbitrary detention contrary to

section 9 of the Charter? [35]

Section 9 of the Charter protects every Canadian citizen from being arbitrarily detained or imprisoned. The purpose of thissection is to protect individuals’ liberty from unjustified state interference. There are two aspects to

section 9 that the person alleging thebreach must prove on a balance of probabilities: the first is that he or she was detained or imprisoned and the second, that it wasarbitrary. Our courts have confirmed that a constitutional guarantee such as

section 9 should be interpreted in a generous rather than alegalistic way aimed at fulfilling the purpose of the guarantee and securing for individuals, the full benefit of the Charter’s protection. See R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) at para. 17 and R. v. Yeh, [2009] S.J. No. 582 (Sask. C.A.) at para.116. [36] Constable Comley was the officer who went after the accused and stopped him. The reason he gave for stopping the accusedcan be gleaned from the following exchange between myself and the officer: Court: I only have one question for you.

Can you tell me - why did you stop this man or this car? Cst. Comley: Originally? Court: Yes, I want to know why you stopped it. Cst. Comley: Okay, there is . . . my initial reason was because he performed a u-turn and although as the Defence definitely and clearlywanted to lay out I had limited experience in the matter but I have had similar incidents that resulted the same way. Court: Okay you saw him do a u-turn . . . Cst. Comley: That’s correct. Court: . . . and that’s the reason why you went . . . Cst. Comley: An illegal u-turn, yes. Court: It’s illegal where? Cst.

Comley: To the best of my knowledge u-turns are permitted in Saskatchewan at controlled intersections. This was not a controlledintersection. Court: But what makes it illegal?

Cst. Comley: Changing directions, crossing . . . Court: No, no, I mean there must be . . . is there some law in place? Cst. Comley: Traffic Safety Act Court: Do you know what section? Cst. Comley: I do not. We carry a cheat book with us so we can refer to and find sections. I am sorry I think I said controlled intersections. It is non-controlled intersections. Ones that wouldn’t be lights. Lighted intersections such as red light intersections, such as four way stop would be legal. Court: Okay, so . . . is . . .

I didn’t mean to interrupt you, but you said one of the reasons you stopped him was because he had performed this u-turn. Cst. Comley: Correct. Court: Was there any other reason that you stopped him? Cst. Comley: Not initially, no. [ 37 ] Immediately after these questions and answers, I asked the Crown if she had any re-examination based on the my questions. The following discourse between the Crown and Constable Comley took place: Crown: I will try to ask this just to clarify the Judge’s questions and just build on that a little bit.

You said initially in your evidence-in-chief that you saw the vehicle do the u-turn while approaching the check stop. Cst. Comley: Correct. Crown: Okay was that a factor at all? Court: Well, hang on, don’t put words in his mouth, okay. Cst. Comley: Okay. Court: Okay I will let him answer that question but just be careful about how you ask these questions, okay. Crown: Yes, yes thank you. Court: Go ahead, you can answer that question. Cst. Comley: Your Honour, I do understand the question that of course there is suspicion that something is going on if someone turns around in front of a check stop.

Can I say without a reasonable doubt that that’s why he turned around. No. All I can say is that it was an illegal u-turn. Court: I appreciate that. Crown: And your Honour, for the record I think that’s initially what . . . he didn’t exactly articulate that in his evidence but that’s certainly what I would interpret his evidence to be. And I don’t have anymore questions for him. [ 38 ] Defence counsel then re-examined Constable Comley as follows: Defence: I just have one follow up question Constable, did you cite Mr. Synkiw for an illegal u-turn that evening? Cst. Comley: No, I never.

Defence: No further questions your Honour. [ 39 ] According to his testimony, the only reason Constable Comley stopped the accused was because the accused had purportedly made an illegal u-turn contrary to the Traffic Safety Act , R.S.S. 2004 c. T-18.1. He did not identify any other reason for stopping the accused: not to check driver’s licence or registration, the mechanical fitness of the accused’s vehicle, because he suspected the accused was intoxicated since he made a u-turn away from a police checkstop, for any other traffic safety reasons, to investigate some crime or for any other reason.

[40] It is clear that Constable Comley’s stopping of the accused was a detention. He pursued the accused with lights flashing andsiren on. The accused had to pull over and let the police officer deal with him. Failing to stop for the officer or driving away before theofficer had dealt with him would most certainly have resulted in further Traffic Safety Act violations or possibly a Criminal Codecharge. By pulling the accused over, Constable Comley had assumed control over his movement by a demand or direction. There arenumerous cases where courts have found a detention in similar circumstances. See R. v.

Hufsky, (SCC), [1988] 1 S.C.R.621 (S.C.C.); R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257 (S.C.C.); R. v. Lott, [1998] S.J. No. 678 (Sask. Q.B.); R.v. Houben, 2006 SKCA 129 , [2006] S.J. No. 715 (Sask. C.A.); R. v. Schaeffer, 2005 SKCA 33 , [2005] S.J. No. 144(Sask. C.A.); R. v. Grant, supra; R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494 (S.C.C.); R. v. Odermatt, [2009] S.J. No.663 (Sask. P.C.). [41] The real question in relation to this issue is whether Constable Comley’s detention of the accused was arbitrary.

The officerdid not suggest that he stopped the accused pursuant to his general power to stop a motor vehicle under

section 209.1 of the Traffic SafetyAct nor did he indicate he stopped the vehicle for an investigative detention. He said he stopped the vehicle as a result of a Traffic SafetyAct infraction. He specified the infraction as an illegal u-turn although he was not certain what

section of the Act referenced that and hedid not seem very sure about what constituted an illegal u-turn. Unfortunately I do not believe that this was the reason he stopped theaccused. [42] The Court has reviewed the Traffic Safety Act R.S.S. 2004, c. T-18.1 and its regulations and the only

section of the Act thatspecifically deals with u-turns is section 235(15). This

section reads as follows: 235(15) At an intersection of highways where a traffic light is in operation, no driver of a vehicle shall turn the vehicle so as to proceed inthe opposite direction. [43] The area where the accused performed his u-turn was not an intersection and there were no traffic lights. According to theevidence, the accused made a u-turn on a straight stretch of roadway. [44] The only other sections of the Traffic Safety Act that could be construed to deal with u-turns are sections 238(1) and 213. These sections read as follows: Rules Re Traffic Lanes 238(1) If a highway is divided into traffic lanes, the following rules apply: (

a) No driver of a vehicle shall fail to drive as nearly as is practicable entirely within one lane or shall drive from that lane to anotherunless it is safe to do so; (

b) No driver of a vehicle shall drive from one traffic lane to another if a solid line exists between lanes except: (

i) if solid and broken lines exist together, in which case the driver may cross the solid line from a lane in which the broken line exists; or (ii) if the lane is designated by signs as a two-way left turn lane; (

c) No driver of a vehicle shall drive to the left of the centre of the highway where a solid line exists in the right hand lane near the centreof the highway; (

d) A driver of a vehicle may drive from one traffic lane to another if broken lines exist between lanes; (

e) No driver of a motorcycle shall drive so that more than two motorcycles move abreast in a traffic lane at anytime;

(

f) No driver of a motorcycle shall drive beside any other vehicle in the same traffic lane, unless that other vehicle is a motorcycle. Driving with Due Care Required 213

(1) No person shall drive a vehicle on a highway without due care and attention;

(2) No person shall drive a vehicle on a highway without reasonable consideration for other persons using the highway. [45] I have travelled the Clarence Avenue extension between the Cartwright intersection and the Diana Street intersection before. There is a broken line between the northbound and southbound lanes of this roadway from Cartwright Road to Diana Street. The exactspot that the accused did the u-turn is unclear however it is obviously somewhere on the roadway between these two intersections. Sincethis whole stretch has a broken line, section 238(1)(

d) permits a u-turn from the northbound lane to the southbound lane. [46] The evidence indicated that there were no other vehicles on the highway south of Cartwright Road at the time that the accusedmade his u-turn and Constable Comley went to stop him. This is not surprising given that it was after midnight and this was a ruralroadway. There was no evidence that at the time the accused made his u-turn it was not safe for him to do so. [47] My conclusion that Constable Comley did not stop the accused because he made an illegal u-turn is bolstered by whatoccurred after the stop.

When the officer attended at the window of the accused’s vehicle he said nothing to the accused about himhaving done an illegal u-turn. Instead he began asking the accused questions about where he was going. If, as the officer testified, hispurpose in stopping the vehicle was because he had made an illegal u-turn contrary to the Traffic Safety Act one would expect the officerto comment on that and ask the accused for his driver’s license and registration and begin writing up a

summary offence ticket. Constable Comley never did this nor did he ever give the accused a ticket for making an illegal u-turn. For all these reasons I amsatisfied that Constable Comley did not stop the accused because of an illegal u-turn. [48] Since I do not believe Constable Comley’s explanation as to why he stopped the accused, I must ask myself if the evidencepoints to any other justification for the stop.

Section 209.1 of the Traffic Safety Act gives a police officer the ability to randomly orarbitrarily stop a vehicle as long as it is for a purpose which relates to driving a car such as checking for driver’s license and insurance,the sobriety of the driver or the mechanical fitness of the vehicle. This was the conclusion reached by Madam Justice Jackson in R. v.Houben, supra, at paragraphs 64 and 65: [64] From this Court’s recent review of the law in Ladouceur and Schaeffer and the above review, I conclude that the law may beexpressed in this manner. Even though a detention may be arbitrary, if a police officer is acting pursuant to section 40(8) of the HighwayTraffic Act (now

section 209.1 of the Traffic Safety Act) any stop effected by the officer is a justifiable infringement of the individual’srights under

section 1 of the Charter. [65] While the police officer acting under section 40(8) (now

section 209.1) need not have “reasonable grounds to detain,” it must be thepolice officer’s intention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin.

The policeofficer need not say expressly to himself or herself that he or she is proceeding to exercise the authority under section 40(8) (now section209.1), or testify to this express effect, but the trier of fact must be able to conclude on the basis of the evidence that the police officerwas checking for “sobriety, licenses, ownership, insurance and the mechanical fitness of cars.” In sum, section 40(8) (now section209.1) cannot be used to create a general power of detention for investigative purposes. See also R. v. Doell, 2007 SKCA 61 , [2007] S.J. No. 264 (Sask.

C.A.) at paragraph 20. [49] The evidence in this case does not support the contention that Constable Comley stopped the accused pursuant to hisauthority under

section 209.1 to check his driver’s license and registration, the mechanical fitness of the accused’s vehicle or because hehad concerns about the accused’s sobriety or for any other reason related to traffic safety. In re-examination by the Crown, he testifiedthat it is suspicious when someone turns around in front of a checkstop but he could not say why the accused turned around nor did he

offer any reason related to traffic safety as to why he decided to stop the accused. He initially noticed the u-turn but did not see any othererratic driving, even when pursuing the accused. This was not a case such as R. v. Schell, [2006] S.J. No. 714 (Sask. C.A.) where theaccused was stopped close to a bar just after closing time. He did not testify to seeing anything mechanically wrong with the accused’svehicle. He did not ask the accused for his driver’s license and registration when he stopped him and he said nothing to the accusedabout violating any traffic laws.

He did not suggest that the stop of the accused was an extension of his powers to stop in relation to thecheckstop he and the other officers had set up. Given the evidence in this case, I am not able to conclude that Constable Comley wasexercising his authority under

section 209.1. The best that can be said from the evidence is that Constable Comley’s suspicions wereraised. But suspicions about what? Traffic safety concerns or other criminal activity? I can do nothing but speculate as to whatspecifically he was suspicious about and that is not appropriate. [50]

Section 209.1 does not create a general power of detention for investigative purposes. However, if a police officer has asuspicion that a driver is involved in criminal activity unrelated to traffic enforcement and they want to stop a motor vehicle, thesuspicion must meet the test set forth for investigative detentions in R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.). See R. v. Houben, supra, at paragraph 65 to 67. [51] In R. v. Mann, supra, Mr.

Justice Iacobucci, speaking for the majority, addressed the test at paragraphs 34, 35 and 45: [34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. Theevolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premisedupon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoingcriminal offence. Reasonable grounds figures at the front end of such an assessment, underlying the officer’s reasonable suspicion thatthe particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individualliberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order tomeet the second prong of the Waterfield test. [35] Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, theyare not empowered to undertake any and all action in the exercise of that duty.

Individual liberty interests are fundamental to theCanadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do nothave carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it became a de facto arrest. . . . . [45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonablegrounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

Inaddition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engagein a protective pat down search of the detained individual. Both the detention and the pat down search must be conducted in areasonable manner. . . . [52] Based on the evidence, I am led to the inescapable conclusion that Constable Comley stopped the accused because he wassuspicious as to why he made a u-turn away from a well marked checkstop and he wanted to detain the accused for investigativereasons.

But even in this circumstance, Constable Comley did not have a general power to detain the accused. In order to detain him,for investigative purposes, the officer had to have some reasonable grounds to suspect the accused was involved in criminal activity. [53] In R. v. Yeh, supra, the Saskatchewan Court of Appeal clarified the police power under Mann to detain for investigativereasons.

While not the main issue the Court dealt with in this Crown appeal, the Court seized the opportunity to clear up anymisconceptions that had arisen on this issue of investigative detentions since the Court’s earlier pronouncement in R. v. Nguyen, [2008]S.J. No. 799. [54] Sitting as a rare seven member panel, all agreed the Crown appeal should be dismissed and the trial court’s acquittal upheld. On this issue of investigative detentions all members of the panel agreed in the result but were split on their reasoning in reaching theirconclusion. Mr. Justice Richards, speaking for five of the seven Justices said:

[75] It is, of course, well established that the police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity. More particularly, they may not conduct an investigative detention to determine whether an individual is, in some broad way, “up to no good.” In order to justify an investigative detention, the police suspicion must be particularized, i.e. It must relate to specific criminal wrongdoing.

Just how specific it must be is not an issue in this appeal. . . . . [91] One critical factor to note in relation to the reasonableness or justification issue is that an investigative detention is lawful only when a police officer has a reasonable suspicion of specific criminal activity based on objectively verifiable grounds and only when, in all of the relevant circumstances, the detention is reasonable. As noted, a generalized feeling on the part of the police that an individual is doing something wrong cannot serve as the basis for a lawful detention.

Thus, in this way, the prerequisites for investigative detentions help to ensure they will not be based on the sorts of hunches and intuitions which can serve as a cover for arbitrary conduct in either deliberate or unconscious profiling based on factors such as race, ethnic origin or socio-economic status. . . . . [94] Overall, it is reasonable to countenance the deprivation of liberty involved in investigative detentions connected to suspected offences in light of the importance of the community interest served by allowing the police to pursue such practices.

Such detentions must not only be based on reasonable suspicion of criminal activity. They must, as well, be reasonable in the circumstances as a whole. As a result, I conclude that, at common law, the police may detain an individual for purposes of an investigation when they have reasonable grounds to suspect he or she is involved in criminal activity.

It is not necessary that the detention be in relation to a known, as opposed to a suspected, offence. [ 55 ] Speaking for herself and the remaining member of the panel, Madam Justice Jackson said: [143] Given this view of the law, the words “suspected offence” or reasonable suspicion of an offence simply do not enter the picture. The words “reasonably suspected” and “particular offence” cannot stand together. When a police officer’s belief rises to the point of a “specific or particular” crime, the threshold of suspicion will have easily been crossed.

Only one other decision uses the words “suspected offence” and that is Cooper, supra (para. 41). [144] The problem with a power of detention, linked to reasonable suspicion only of an offence, is that the purpose of the detention changes fundamentally. Such a power moves the legal goal posts, in what I will call the police stop cases, from detaining an individual to determine whether he or she is linked to a crime to detaining an individual for the purposes of discovering whether there is a crime so as to permit an exercise of the arrest powers.

In my view, an expansion of the law in this manner will lead to an inconsistent application of the law, depending on how aggressively the police engage in preventative policing in any given community - and a significant expansion of innocent members of the travelling public being detained by the police. Moreover, the line between detention based on a “suspected offence”, and detention based on suspicious generalized criminal activity, is too narrow for the courts to supervise without obtaining inconsistent results.

We will continue to see an incremental expansion of police activity as represented by Nguyen, Bramley and this case. The fact patterns in these cases are playing out in other jurisdictions as well. See, for example, Pearson, supra. [145] A power to detain based on a “suspected offence” or a “reasonably suspected offence” is also more open to the abuse of police powers on the basis of stereotype or race. This was a factor in Calderon (see: para. 73), and is a concern expressed by the academic community (see: Benjamin Berger, “Race and Erasure in R. v.

Mann ”, [2004] 21 C.R. (6 th ) 58 at 59 ; Tim Quigley, “Mann, It’s A Disappointing Decision” , [2004] 21 C.R. (6 th ) 41 at 44 - 45 ; and David Tanovich, “The Further Erasure of Race in Charter Cases” [2006] 38 C.R. (6 th ) 84 at 84-86) . [ 56 ] Madam Justice Jackson concluded that: [142] The full Mann criteria are these. A police officer cannot detain someone unless the following requirements of Mann have been met: 1.

The officer decides, based on all of the information available, including a reported crime and what he or she hears, smells and sees, that a crime has been recently committed, or is being committed; 2. The officer has reasonable suspicion that there is a clear nexus between the particular individual to be detained and the crime identified by the officer; and

3. The detention is reasonably necessary given the totality of the circumstances. If, in the exercise of the courts’ supervisory power, a judge cannot conclude that these criteria were met before the person was placed under investigative detention, the detention will be found to be arbitrary. [ 57 ] These differing trains of thought present somewhat of a challenge in determining what the scope of the Mann test is. Without placing too much weight on particular words, I think that the test can be distilled down to whether the police have reasonable grounds to suspect that a person is involved in criminal activity.

If they do not, then any detention for investigative reasons will be considered arbitrary and a violation of

section 9. [ 58 ] Constable Comley had received no dispatches to be on the lookout for anyone matching the accused’s description or driving a Honda Civic automobile. He had received no information that a crime had recently been committed to which the accused or his vehicle was somehow attached. There was no indication that this particular area in which the accused was stopped was a high crime area or an area in which the police had frequently located impaired drivers. There was nothing illegal about the accused’s driving as he approached the checkstop. He did not observe the accused committing a specific crime.

After the accused turned away from the checkstop he did not speed, break any traffic laws or drive erratically. All Constable Comley saw was the accused making a u-turn away from a checkstop. There was nothing more. I agree that this may raise a general suspicion or give the officer a hunch that the accused was doing something wrong, but this is a far cry from reasonable grounds to suspect he is doing something illegal. As Mr.

Justice Iacobucci said in Mann , the power to detain cannot be exercised on the basis of a hunch. [ 59 ] I was not referred to any law, nor could I locate one, that imposed a positive duty on a motorist to proceed through a checkstop if they see one. In this particular case, the accused made a u-turn away from the checkstop. But what if the accused had turned away on an intersecting road, driven into a yard site or had pulled over, got out of his vehicle and started walking away? The situation in all these circumstances, including what occurred in the present case, is the same.

Unless a police officer has reason to arrest you or they utilize their general power under

section 209.1 of the Traffic Safety Act to check the driver for reasons related to traffic safety or they have reasonable grounds to suspect that you have committed or are committing a crime, the police have no power to detain you. [ 60 ] In the absence of reliance on

section 209.1 of the Traffic Safety Act , to allow a police officer to stop any vehicle that does not go through a checkstop because they did not go through the checkstop without any other scintilla of evidence that they are doing something illegal or did something illegal is no different than stopping someone simply based on their race, colour or nationality (except that the latter may be morally reprehensible). To assume all people who do not proceed through a checkstop are doing something illegal is stereotyping.

There could be any number of reasons why someone chooses not to proceed through a checkstop; some legitimate and some illegitimate. But to assume that in all circumstances they have illegitimate motives is not appropriate. [ 61 ] Some may argue that the end result of reasoning of this nature is that checkstops will be rendered useless. If people can choose not to go through a checkstop without fear of the police coming after them and stopping them then they will avoid them. But this argument is fallacious.

If a police officer has proper grounds to arrest you, has reasonable grounds for an investigative detention, or is acting pursuant to his or her power under

section 209.1 of the Traffic Safety Act then they can detain you. If they are not acting pursuant to one of these three reasons then they cannot detain you. It is no more complicated than that. [ 62 ] In this case, having found that there was an investigative detention, the evidence does not support that the accused was involved in criminal activity anymore than that the accused was not involved in criminal activity.

Besides the fact that he made a u-turn away from a checkstop, there is nothing more in the evidence indicating that the accused was impaired, involved in some illegal activity or that he had committed some crime or violated any other statute. He may have been impaired, he may have been driving without a valid licence, he may have been in possession of illegal drugs or he may have been committing some other offence. Likewise he may have forgot something from where he came and was just returning to get it, he may have gone the wrong way or he may have been called to an emergency.

I would be speculating that the accused made a u-turn away from the checkstop for illegitimate reasons just as much as I would be speculating that he did it for legitimate reasons. I simply cannot be satisfied on the evidence in this case that Constable Comley had reasonable grounds to stop the accused for an investigative detention. His suspicion that the accused had done something wrong was not enough. The stop was arbitrary and I am satisfied that the accused’s

section 9 Charter rights were breached. [ 63 ] Even though I have found that the detention was a violation of

section 9, I must consider whether it could be saved by

section 1 of the Charter (see R. v. Doell , supra at para. 17 ). Arbitrary police detentions for purposes of promoting highway traffic safety can be justified pursuant to

section 1. See R. v. Hufsky , supra, ; R. v. Ladouceur , supra . However, the evidence does not convince me, on a

balance of probabilities, that Constable Comley stopped the accused for highway traffic safety matters. I am not sure why he stoppedthe accused except to satisfy his curiosity as to why the accused made a u-turn away from their checkstop. He was suspicious theaccused may have been doing something wrong but he had no idea what that may be. I do not believe such a situation is saved by section1. The Crown made no argument to justify the detention under

section 1 on this or any other basis in oral or written submissions and as aresult, I do not find that the breach of the accused’s

section 9 Charter right was justified as a reasonable limitation of that right.

b) Was there an unreasonable seizure of the accused’s breath contrary to

section 8 of the Charter? [64] Defence counsel suggests that Constable Kisters did not have grounds upon which to reasonably suspect that the accused hadalcohol in his body and therefore there was no basis for an approved screening device demand. As a result the sample provided into theapproved screening device was a breach of the accused’s right to be secure against unreasonable search and seizure as guaranteed bysection 8 of the Charter. Even though I have found that the initial stopping of the accused was a breach of

section 9 of the Charter, itdoes not automatically follow that the accused’s

section 8 Charter right as set forth by Defence counsel was violated. The

section 8breach does not flow from the

section 9 breach and as a result I must analyze this issue independently. [65] Section 254(2) of the Criminal Code gives a police officer the power to demand that an individual provide a breath sampleinto a roadside screening device. This

section reads as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railwayequipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, thepeace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs(

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [66] The requirement that an officer have a reasonable suspicion is a low threshold for the Crown to meet. All they must show isthat the officer had an honest suspicion that the person had alcohol in their body and that there is an objectively reasonable basis for thatsuspicion. The smell of alcohol on a person’s breath alone is sufficient to ground a reasonable suspicion. See R. v.

Lindsay, (ON CA), [1999] O.J. No. 870 (Ont. C.A.); R. v. Butchko, 2004 SKCA 159 , [2004] S.J. No. 735 (Sask. C.A.); R.v. Fuchs, [2006] S.J. No. 587 (Sask. P.C.); R. v. Boutin, [2010] S.J. No. 320 (Sask. Prov. Ct.) [67] In the present case, although Constable Comley stopped the accused and dealt with him initially, it was Constable Kisterswho made the approved screening device demand and performed the roadside test on the accused. The reason for this was that at thetime, Constable Comley was not a qualified approved screening device operator.

Constable Comley did not pass along any observationshe had made of the accused to Constable Kisters. Constable Kisters made his own observations of the accused. He testified that itappeared to him that the accused was staggering somewhat or unsure of his balance as he came toward the police cruisers, the accusedhad bloodshot eyes and in the police cruiser he could smell an odour of beverage alcohol coming from the accused’s breath.

On thebasis of these observations he felt he had sufficient grounds to make an approved screening device demand on the accused. [68] I am satisfied on these observations that Constable Kisters had an honest suspicion that the accused had alcohol in his bodyand that that suspicion was objectively reasonable. It did not matter that Constable Comley did not pass along any of his observations toConstable Kisters.

It was Constable Kisters who had to satisfy himself that he had the basis upon which to make the demand and he didso in this case. [69] Defence counsel strenuously argued that since Constable Kisters prepared the roadside device for the test before he made thedemand he was just acceding to Constable Comley’s request to make the demand and give the accused the test in the absence of

satisfying himself that the appropriate grounds for a demand existed. He refers to the case of R. v. Sirelpuu [2006] O.J. No. 5290 (Ont. C.J.) and urged me to follow the reasoning set forth in that case to find that Constable Kisters did not have the appropriate grounds to make the roadside demand. [ 70 ] Having read Sirelpuu, supra, I do not find it of assistance. In that case, a police officer noted a vehicle being driven by Mr. Sirelpuu parked in a driveway with no plates on it. He asked the accused for his driver’s license and the permit for the vehicle.

As he dealt with the accused he noticed that the accused appeared overly relaxed, had bloodshot eyes and his movements were slow. Based on these observations he felt he had a reasonable suspicion that the accused had alcohol in his body and he placed the accused in the back of his police cruiser to make the formal demand and administer the test. It was not until he was speaking to the accused in his police cruiser that he noticed an odour of alcohol coming from him but by this time he felt he already had the grounds to make the roadside demand. [ 71 ] The trial judge found a

section 8 and 9 Charter breach on these facts because objectively, he found that the officer did not have the grounds for a reasonable suspicion that the accused had alcohol in his body when he put the accused in his police cruiser. [ 72 ] This is not the situation in the present case. Here, the accused was placed in the back of Constable Kisters’ police cruiser because Constable Comley had told him they were going to investigate him for impaired driving. At this stage, Constable Comley had detained the accused for further investigation based on what he had observed to that point in time.

While the accused was in the back of the patrol car Constable Kisters formed his grounds for the approved screening device demand based on what he had previously observed as well as what he saw and smelled in the police vehicle. It does not matter that Constable Kisters was already preparing the machine for a test. Unlike the officer in Sirelpuu , he did not testify that he already felt he had the grounds to make the demand when he was warming up the device. At that point he had only noted some unsteadiness in the accused.

He did not make a demand on the accused until after he noted bloodshot eyes and a smell of alcohol from the accused when they were in the police cruiser. It was at this stage that Constable Kisters felt he had the grounds and he properly made the demand and administered the test. The approved screening device was warmed up already and the test was given forthwith as required by the case law.

Had Constable Kisters not formed what he felt were grounds for a reasonable suspicion that the accused had alcohol in his body, he could simply have turned off the approved screening device and let the accused go. [ 73 ] Therefore, I am not satisfied on a balance of probabilities that there has been a breach of

section 8 of the Charter in this case.

c) If there was a

section 9 and/or

section 8 Charter breach, should the evidence obtained as a result of the breach be excluded pursuant to section 24(2) of the Charter? [ 74 ] Having found that Constable Comley breached the accused’s

section 9 Charter right to be free from arbitrary detention, I must now consider whether any evidence of impairment, the fail result on the approved screening device and the Certificate of Analysis should be excluded pursuant to section 24(2) of the Charter . [ 75 ] In R. v. Grant , supra, the Supreme Court of Canada said that the Court’s obligation on an application to exclude evidence is to assess and balance the following three factors to determine whether admitting the impugned evidence would bring the administration of justice into disrepute:

a) The seriousness of the Charter infringing state conduct ;

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

c) Society’s interest in the adjudication of the case on its merits. [ 76 ] In R. v. Harrison , supra, a companion case to Grant the Supreme Court applied the Grant test to exclude the evidence. In that case, the accused and his friend were driving a rented vehicle from Vancouver to Toronto. In Ontario, a patrol officer noticed that the vehicle had no front license plate. Only after activating his roof lights to pull the vehicle over did he realize that since the vehicle was registered in Alberta, it did not require a front license plate.

He still pulled the vehicle over even though he had no grounds to believe that any offence was being committed because he felt that abandoning the detention might have affected the integrity of the police in the eyes of observers . The officer’s suspicions were aroused at the beginning of the encounter and he eventually determined that the accused’s drivers license was suspended. He arrested the accused, searched the vehicle and found two cardboard boxes containing 35 kilograms of cocaine.

[77] The trial court and the Court of Appeal had no problem finding a

section 9 violation on these facts however both levels ofcourt admitted the evidence of the cocaine and convicted the accused. The Supreme Court agreed that the

section 9 Charter violationwas obvious. Chief Justice McLachlin speaking for the majority had this to say at paragraph 20: [20] The Charter breaches in this case are clear. It is common ground that the appellant’s rights under sections 8 and 9 of the Charterwere violated by the detention and search, as found by the trial judge. Given that the officer recognized prior to the detention that theappellant’s SUV did not require a front license plate, he should not have made the initial stop.

A vague concern for the “integrity” of thepolice, even if genuine, was clearly an inadequate reason to follow through with the detention. The subsequent search of the SUV wasnot incidental to the appellant’s arrest for driving under a suspension and was likewise in breach of the Charter.

While an officer’s“hunch” is a valuable investigative tool - indeed, here it proved highly accurate - it is no substitute for proper Charter standards wheninterfering with a suspect’s liberty. [78] However, applying the three lines of inquiry in the Grant case, the Chief Justice overturned the lower courts decision on theexclusion of the cocaine from evidence. On the matter of the seriousness of the Charter infringing state conduct, she had this to say: [23] The trial judge found that the police officer’s conduct in this case was “brazen”, “flagrant” and “extremely serious”.

The metaphorof a spectrum used in R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont.

C.A.), per Doherty J.A., may assistin characterizing police conduct for purposes of this section 24(2) factor: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard forCharter rights . . . what is important is the proper placement of the police conduct along that fault line, not the legal label attached to theconduct. [citation omitted; paragraph 41.] [24] Here it is clear that the trial judge considered the Charter breaches to be at the serious end of the spectrum. On the facts foundby him, this conclusion was a reasonable one.

The officer’s determination to turn up incriminating evidence blinded him toconstitutional requirements of reasonable grounds. While the violations might not have been “deliberate”, in the sense of setting out tobreach the Charter, they were reckless and showed an insufficient regard for Charter rights.

Exacerbating the situation, the departurefrom Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non-existent. [79] On the second ground of the inquiry, the impact on the Charter protected interests of the accused, she had this to say: [31] This said, being stopped and being subjected to a search by the police without justification impacts on the motorist’s rightfulexpectation of liberty and privacy in a way that is much more than trivial.

As Iacobucci J. observed in Mann, the relatively non-intrusivenature of the detention and search “must be weighed against the absence of any reasonable basis for justification” (paragraph 56emphasis in original) A person in the appellant’s position has every expectation of being left alone - subject, as already noted, to validhighway traffic stops. [32] I conclude that the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore asignificant, although not egregious, intrusion on the appellant’s Charter protected interests. [80] Finally, under the third ground, society’s interest in an adjudication on the merits, she said: [34] The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable.

It was critical evidence, virtuallyconclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth seeking function ofthe trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while thepublic has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vitalinterest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in

mind, the third line of inquiry under the section 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits. [ 81 ] In balancing these three factors and assessing their impact on the long term repute of the administration of justice, the Chief Justice said: [39] . . . The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter .

To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long term repute of the administration of justice; on the contrary, it undermines it.

In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion. . . . [41] Additionally, the trial judge’s observation that the Charter breaches “pale in comparison to the criminality involved” in drug trafficking risked the appearance of turning the section 24(2) inquiry into a contest between the misdeeds of the police and those of the accused. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by section 24(2).

We expect police to adhere to higher standards than alleged criminals. [42] In

summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute. It should have been excluded. [ 82 ] The Chief Justice’s comments that I have quoted are very applicable to the present case. With these words in mind I will review the Grant factors and balance my findings with an overall view to the long term reputation of the administration of justice.

Seriousness of the Charter infringing state conduct [ 83 ] I did not believe Constable Comley’s testimony that he stopped the accused for a Traffic Safety Act infraction. The evidence does not support his contention in that regard nor does it support an inference that he stopped the accused pursuant to his power under

section 209.1 of the Traffic Safety Act . This stop was an investigative detention based on a hunch that the accused was doing something wrong when he made a u-turn away from a checkstop. It is of some concern to me that Constable Comley was not prepared to admit this. There are only two possible explanations for this. First, the officer knew that he did not have the basis to stop the accused for an investigative detention but stopped him anyway on the guise of a non-existent traffic infraction. Or second, he did not know what constituted an illegal u-turn or upon what basis he could stop a motor vehicle.

However you look at it, both of these explanations place Constable Comley’s conduct at the more serious end of the spectrum. Impact on the Charter protected interests of the accused [ 84 ] As stated in Harrison , supra, a breach of a person’s right to be free from arbitrary detention should not be taken lightly. The accused had every right to expect to be left alone unless Constable Comley had a valid reason to stop him. Constable Comley was suspicious and was trying to see if there was anything to his suspicion. While ultimately his hunch proved to be correct, the end cannot be used to justify the means.

Our Courts have continually held that there is no general power to detain anyone at any time based simply on suspicion. In other words, we are still very protective of a person’s liberty even in light of a police officer’s duty to investigate crime. [ 85 ] While both Constable Comley and Constable Kisters treated the accused appropriately and the accused was polite and cooperative with them, this was still a case of the police exceeding their powers. It was not the most egregious breach of an accused’s

section 9 Charter right but it was not the most trivial either. It was a significant deprivation and intrusion on the accused’s liberty based on nothing more than suspicion.

Society’s interest in an adjudication on the merits [86] The evidence that is the subject of this application is critical to the Crown’s case. The signs of impairment noted, the result ofthe approved screening device test and the result of the intoxilyzer tests all go to the crux of whether the accused is guilty or not ofdriving while over .08 and/or impaired driving. Without this evidence the Crown would not have a case. [87] Obviously this factor would favour admission of the evidence.

I find it difficult to fathom a situation where this third line ofinquiry would not favour the admission of the impugned evidence since if the evidence was not of importance to the Crown’s case, therewould be no need to run a Charter application seeking its exclusion. Balancing the factors [88] Living in a democratic society, Canadians have an interest in being free to drive on a public highway without being stoppedby the police for no valid reason. Case law has established certain limits on this interest that accord with society’s desire to keep ourroads safe.

For example, traffic safety checkstops are arbitrary detentions but are saved by

section 1 of the Charter. But these arereasonable limits. This interest has not been completely extinguished. [89] What is of particular concern to me is that Constable Comley would have me believe he stopped the accused for an illegal u-turn when the evidence points to the fact that he stopped the accused to investigate why he made a u-turn away from the policecheckstop. What also concerns me is that he did not know the law in relation to what is and what is not an illegal u-turn nor did he havethe necessary grounds for an investigative detention.

The accused’s u-turn was legal and there was no indication that he was involved inany criminal activity or other illegal activity. It was not reasonable to jump to the conclusion that the accused was doing somethingwrong just because he made a u-turn away from a checkstop. Without anything more it would be speculation to jump to this conclusion. [90] The importance of the evidence to the Crown’s case weighs in favour of its admission, but the officer was negligent and thebreach was serious. In R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456 (S.C.C.) a sniffer dog case, Mr.

Justice Binniesaid at paragraph 104: . . . The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search onthe condition of the existence of reasonable suspicion, and having acted in this case without having met the condition precedent, were inany event to succeed in adducing the evidence. Drug trafficking is a serious matter, but so are the constitutional rights of the travellingpublic. In the sniffer dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicialauthorization.

The only effective check on that authority is the after the fact independent assessment. Granted these comments are in reference to a police dog sniffing out drugs but they are also applicable to the present case. The policehave the exceptional power to stop a motor vehicle if they have reasonable grounds to suspect an offence has been committed, for validtraffic safety concerns or at a checkstop. If their articulated reasons for stopping the vehicle do not fall within one of these categories butthe evidence could still be admitted despite that, what would be the encouragement to stop only for a valid reason?

As the case law says,“the travelling public demands more”. As a result, in the present case, I exclude the evidence of the signs of impairment noted after theaccused was stopped, the fail reading on the approved screening device and the Certificate of Analysis. To do otherwise would bring theadministration of justice into disrepute.

d) Is the evidence sufficient to prove that the accused’s ability to operate a motor vehicle was impaired by alcohol? [91] Having excluded the signs of impairment noted by Constable Comley and Constable Kisters on the basis of the breach of theaccused’s

section 9 Charter right, there is no evidence that the accused’s ability to operate a motor vehicle was impaired.

CONCLUSION [ 92 ] I therefore acquit the accused, Nicholas Synkiw, on the charge of impaired driving contrary to section 253(1)(

a) and the charge of driving while over .08 contrary to section 253(1) (

b) of the Criminal Code on Information 24180756. _______________________________ D.E. Labach, J