Her Majesty the Queen - v. -, 2020 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 28 Date: July 3, 2020 Information: 90190106 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew Morrison Appearing: M. Pilon, D. Br ûlé For the Crown M. Owens For the Accused DECISION ON VOIR DIRE M.M. BANIAK , J [ 1 ] The accused, Andrew Morrison, stands charged that on or about the 11 th day of January, A.D. 2019, at Martensville, in the Province of Saskatchewan he did: 1) operate a conveyance while ability to operate is impaired to any degree by alcohol, contrary to

Section 320.14(1) (

a) of the Criminal Code ; and 2) have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml blood within two hours after ceasing to operate a conveyance, contrary to

Section 320.14(1) (

b) of the Criminal Code .

[ 2 ] The trial commenced on September 3, 2019. By agreement, a voir dire to determine certain Charter of Rights and Freedoms [ Charter ] issues raised by the defence was blended into the trial proper. [ 3 ] The accused, Andrew Morrison, challenged the mandatory approved screening (MAS) demand contained in s. 320.27(2) of the Criminal Code . [ 4 ] The notice under The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 was dated August 16, 2019. [ 5 ] Mr.

Morrison argues that the new section, which came into force on December 18, 2018, infringes his Charter rights to be free from unreasonable search and seizure ( s. 8 ) and his rights to be free from arbitrary detention or imprisonment ( s. 9 ), and seeks the following remedies: 1) a declaration that s. 320.27(2) of the Criminal Code is unconstitutional; 2) a judicial stay of all charges pursuant to s. 24(1) of the Charter ; and 3) any other remedy the Court deems appropriate including the exclusion of all evidence emanating from the breaches. [ 6 ] On April 6, 2020, some nine months after the trial started, and after a couple of adjournments for continuation of the trial, defence counsel filed a notice pursuant to The Constitutional Questions Act alleging a violation of Mr.

Morrison’s right to be tried within a reasonable time as per s. 11(

b) of the Charter , and sought the remedy of “judicial stay” of the charge pursuant to s. 24(1) of the Charter . [ 7 ] This application was heard on June 15, 2020, which was also the date on which the trial concluded. [ 8 ] Once I have summarized the evidence, I will address this Charter notice first, because if it is successful it will not be necessary to consider the contents of the first Charter notice which was filed prior to the commencement of the trial. Evidence [ 9 ] The Crown’s first witness was Constable Dana Schreiner, a seven year member with the Corman Park Police Service.

On January 11, 2019, he and his partner, Constable Kyle Rathgeber, were patrolling the rural municipality of Corman Park. Shortly after midnight, they stopped a vehicle operated by Mr. Morrison on the outskirts of the City of Martensville. [ 10 ] They observed the vehicle for some ten minutes before effecting the stop and did not observe anything unusual or suspicious about Mr.

Morrison’s driving. [ 11 ] When asked why the traffic stop was conducted, Constable Schreiner replied: the traffic stop is being conducted to check for driver’s licence, registration, driver fitness, vehicle fitness. [1] [ 12 ] Both officers approached Mr. Morrison’s vehicle. Once they retrieved his driver’s licence and registration they returned to the police vehicle while Mr. Morrison remained in his vehicle. Their ensuing course of action was described by Constable Schreiner as follows: Q Okay. Just keep going for us, and please tell the Court what happened. A Okay.

So we would have returned to our police vehicle. Myself or Constable Rathgeber, I’m not sure who was operating the mobile computer in the vehicle, but I believe it was Constable Rathgeber would have checked driver’s licence, registration ensure -- sorry, ensuring that Mr. Morrison’s a valid driver and has a valid vehicle. And then after that, it would have been -- it’s Corman Park Police Service policy to perform a mandatory approved screening device demand and subsequently take a sample from any driver we stop after 6:00, or 1800 hours at night.

And so Constable Rathgeber would have returned to the vehicle to read that demand. At that time, Constable Rathgeber was not a trained operator of the approved screening device, so I would have conducted that -- that sample. [2]

[ 13 ] After directing Mr. Morrison to put out his cigarette, Constable Schreiner waited five minutes before administering the ASD test. This was done at 00:05 hours; the screen turned red and displayed “fail”. At 00:06 hours, Constable Schreiner arrested Mr. Morrison for impaired operation of a motor vehicle. [ 14 ] Following the arrest, Constable Schreiner contacted the Martensville RCMP detachment to ask for someone to come and wait with Mr. Morrison’s vehicle for a tow truck and, secondly, about the availability of a breath technician. [ 15 ] Mr.

Morrison was placed in the police vehicle and, at that point, Constable Schreiner noticed the smell of beverage alcohol. [ 16 ] Within minutes, Corporal Churobine and Constable Nording of the RCMP arrived at the scene to look after Mr. Morrison’s vehicle. After Constable Schreiner retrieved a couple of articles from Mr. Morrison’s vehicle – at his request – they left for the Martensville detachment. [ 17 ] Once they arrived at the detachment, they proceeded to the interview room where the first observation period was to commence.

This observation period started at 00:27 hours. [ 18 ] At this point in the proceedings, Constable Schreiner was sworn on the voluntariness voir dire . In response to the question by the Crown as to whether Mr. Morrison said anything in the police vehicle or at the detachment, Constable Schreiner testified as follows: A Yes. So in relation to that, I -- I have noted, and this would have been at the Martensville detachment during the observation periods, I believe, that Mr. Morrison had -- had advised us he’d -- he had consumed two beer and – and they were tall boys.

And sorry, I don’t -- I’m not a beer connoisseur, so I’m not sure how big a tall boy is, but I’m assuming bigger than your normal 355 millilitre can. And he advised that he shouldn’t have been driving and that he was taking backroads back to Martensville from Hampton Village. [3] [ 19 ] The audio-video playback revealed the following:

a) the ASD test was administered at the window of Mr. Morrison’s vehicle;

b) the two constables and the accused were in the police vehicle at 00:10 hours;

c) Constable Schreiner calling the Martensville detachment at 00:13:20 hours;

d) the RCMP vehicle arrived at 00:15:15 hours;

e) Constable Schreiner going to Mr. Morrison’s vehicle apparently to retrieve cigarettes and keys at Mr. Morrison’s request;

f) departing the scene for Martensville detachment at 00:22:05 hours; and

g) arrival at Martensville detachment at 00:23:28 hours. [ 20 ] Constable Kyle Rathgeber also testified on the voluntariness voir dire . He testified that when Mr. Morrison was stopped he was asked for his licence, his registration and where he was coming from. According to Constable Rathgeber, Mr. Morrison told him that he was coming from his buddy’s house, and when asked if he had any alcohol to drink his answer was “no”. [ 21 ] After performing the licence and registration checks, Constable Rathgeber went back to Mr. Morrison’s vehicle and advised him that a mandatory breath sample would be required.

He testified that he read the breath sample demand to Mr. Morrison, but that Constable Schreiner administered it. When a failed result appeared on the approved screening device, Mr. Morrison was arrested, handcuffed and placed in the police vehicle. His Charter rights were read to him at 00:11 hours. When asked if he wanted to speak to a lawyer, Mr. Morrison said “no”. When asked the same question at the detachment, Mr. Morrison’s answer was the same. [ 22 ] During cross-examination, Constable Rathgeber acknowledged that there was no evidence of bad driving, and that Mr.

Morrison did not display any physical signs of intoxication at the detachment – other than the smell of alcohol. Therefore, if not for the fail on the approved screening device, a demand for a breath sample would not have been made.

[ 23 ] Following submissions by counsel following the voluntariness voir dire , I found the statements or admissions made by Mr. Morrison to be voluntary and, therefore, admissible. [ 24 ] Constable Kyle Rathgeber was recalled and continued testifying. When asked about the manner of Mr. Morrison’s driving, he answered as follows: A No, he was travelling speed limit, there was no swerving, no sudden braking, no speeding up, slowing down, adjusting speeds at all. So it was a normal driving as -- as I took it. [4] [ 25 ] When Constable Rathgeber stopped Mr.

Morrison’s vehicle, he described his next step as follows: A I approach the vehicle, talk to Mr. Morrison.

I -- I introduced myself as Constable Rathgeber with the Corman Park Police, state there - - a reason for the stop, ask him where he’s coming from, where he’s going, and ask about any alcohol consumption that night. [5] [ 26 ] When asked the reason for the stop, he stated: A The reason for the stop was under the Traffic Safety Act 209.1(2) to check for driver’s license, registration, and sobriety. [6] [ 27 ] After the checks with respect to the licence and registration were completed, the two constables discussed doing the mandatory ASD demand. Constable Rathgeber read the demand to Mr.

Morrison, and Constable Schreiner administered the test. The demand, as read to Mr. Morrison, was read into the record by Constable Rathgeber: In accordance with our Criminal Code I demand that you provide a sample of your breath suitable for analysis in an approved screening device to determine if you have any alcohol in your body and that you accompany me for the purpose of providing such a sample. Do you understand? [7] [ 28 ] He was present when Constable Schreiner administered the ASD test, and observed the screen go red and the word “fail” appear. [ 29 ] He then arrested Mr.

Morrison, read him the breath demand and the Charter rights to counsel, both of which were read off a card. After obtaining assistance from the Martensville RCMP to secure Mr. Morrison’s vehicle, the Corman Park police officers took Mr. Morrison to the Martensville detachment. After declining an opportunity to speak to counsel again, Mr. Morrison was placed in an interview room where the first observation period commenced. Upon receiving two proper samples, Mr.

Morrison was advised that “. . . he would be charged with impaired driving a motor vehicle and having a blood alcohol over 80 milligrams percent.” [8] [ 30 ] Constable Rathgeber then served Mr.

Morrison with the Certificate of Qualified Technician; the Notice of Intention to Produce Certificate; and the Affidavit of Service, all collectively marked as Exhibit P-3. [ 31 ] The final document introduced by Constable Rathgeber, and marked as Exhibit P-4 was the Certificate of Qualified Technician Approved Instrument Printout. [ 32 ] The last portion of his examination-in-chief dealt with occurrence times and words used to make the breath demand, to provide counsel rights and the police warning. These may be summarized as follows:

a) breath demand read at 00:11 hours;

b) Charter counsel right read at 00:11 hours;

c) police warning read at 00:12 hours;

d) RCMP detachment called re: availability of breath tech at 00:14 hours;

e) RCMP police vehicle arrived at scene at 00:14 hours;

f) leaving the scene at 00:21 hours with the accused;

g) arrival at Martensville detachment at 00:24 hours;

h) arrival at interview room at 00:26 hours;

i) start of first observation period at 00:27 hours;

j) first breath sample given at 00:50 hours and the second sample at 01:38 hours. The reason given for the lengthier time period between the first and second test was that Mr. Morrison burped and this necessitated the observation period to be restarted. [ 33 ] The breath demand, Charter counsel right, and the police warnings were read from standard police issued cards. Constable Rathgeber read those into the record. [ 34 ] During cross-examination, Constable Rathgeber reiterated that he read the mandatory ASD breath demand to Mr. Morrison, as he had done on other occasions to other drivers stopped.

It was the policy of Corman Park Police Service to conduct such tests on all drivers stopped between 6:00 p.m. and 6:00 a.m. The only time that the tests were not performed was when the officers did not have the device with them.

Moreover, he testified that he had to read the mandatory demand because “I did not have any reasonable suspicion, no.” [9] [ 35 ] Proceedings were adjourned at approximately 5:30 p.m., and cross-examination of Constable Rathgeber resumed on November 19, 2019. [ 36 ] During this portion of his testimony, Constable Rathgeber related his interaction with the accused while he was in his vehicle and then once he was placed in the police vehicle.

According to Constable Rathgeber, the accused, when stopped, denied having consumed any alcoholic beverage, but after the ASD test was performed and he was placed in the police vehicle he admitted to drinking.

Constable Rathgeber readily acknowledged that he could not recall certain parts of his conversation with the accused at roadside. [ 37 ] Following the conclusion of the Crown’s case on the voir dire , defence applied for a directed verdict of not guilty with respect to Count 1 of the Information, which was granted. [ 38 ] At that point, defence elected to call evidence with respect to Count 2 of the Information and Mr. Morrison was sworn as a witness. [ 39 ] He testified that on the night in question he was coming from a friend’s house in Saskatoon (Hampton Village).

Once he was stopped, Constable Rathgeber came up to his driver’s side window and asked for his driver’s licence and registration. No other words were spoken. After coming back from the police vehicle, Constable Rathgeber retrieved the driver’s licence and registration and advised Mr.

Morrison “ . . . that he had reasonable grounds for – reasonable grounds to suspect that I had alcohol in my system, and that he was – I – was to administer a breath sample.” [10] [ 40 ] He also testified that even though he was instructed to put out the cigarette he was smoking, he did not do so, and that he kept smoking till about a minute or less prior to providing the breath sample. [ 41 ] After failing the ASD test, he was arrested, searched and placed in the police vehicle.

He was advised of his counsel rights and indicated that he did not wish to speak with one. [ 42 ] He emphatically denied that he told Constable Schreiner that he was too impaired to drive. [ 43 ] During cross-examination, Mr. Morrison acknowledged that he was told to put the cigarette out by Constable Rathgeber but that he did not do so.

[ 44 ] When questioned about the actual wording of the ASD demand, Mr. Morrison was emphatic about certain aspects, but denied other parts suggested to him: Q When he's reading that demand, he's telling you you have to give him a breath sample. What exactly, verbatim if you can, does he tell you? A That you -- I have reasonable grounds to suspect that you have drug -- or no. Sorry. I have reasonable grounds to suspect that you have alcohol or a drug in your system, and you need to administer a breath sample -- or provide a breath sample, sorry, not administer. Q Anything else? A No.

That's as much as I can remember. Q That's as much as you can remember? Is it possible he reads you something else? A No. Q No? A No. Q Is it possible that he says anything along the lines of "in accordance with the Criminal Code "? A No. Q No? A No. Q Is it possible at any time that he reads to you "and that you accompany me for the purpose of providing such sample"? A No. [11] [ 45 ] When it was suggested to Mr.

Morrison that he may be confusing the words “I have reasonable grounds to believe” being used by the police officer in the police vehicle as opposed to when a demand was made to provide a breath sample into the ASD he maintained that this was not possible. [ 46 ] When asked if the phrase or words “I have reasonable grounds to believe” were used in the police car he replied “that, I can’t remember”. [12] When asked if he remembered what was read to him in the police car, he said “no”. [13] Submissions on Voir Dire [ 47 ] Defence first argued that the testimony of the accused was largely unchallenged, while that of the police officers was rife with inaccuracies and contradictions.

As such, when assessing credibility, the evidence of the accused should be preferred – especially when considering that the police neglected to audio-video record the entire occurrence. Simply put, it is not clear why the accused was stopped in the first place. [ 48 ] The police officer who first approached the accused’s vehicle did not have the ASD device with him. He returned to the police vehicle, came back to make the demand, and then his partner came back to administer the test.

This, according to the defence, puts into question the police assertion that the stop was made for the purpose of an impaired driving investigation.

[ 49 ] This is further aggravated by the fact that the police, who in this case lacked any suspicion about the accused’s impairment, were acting under the authority of the recently enacted s. 320.27(2) of the Criminal Code , which allows for the mandatory approved screening demand. According to the defence, that

section is unconstitutional and as such could not be relied upon the police officer to make the demand. [ 50 ] Defence further submits that it is not entirely clear that the police officer in this instance made the proper demand in compliance with the new legislation. Defence also argues that the new

section requires that the police officer have the approved screening device in his possession, which was not the case here. [ 51 ] These deficiencies, in addition to the fact that the

section authorizing a mandatory screening demand is unconstitutional and breaches ss. 8 and 9 of the Charter , make the demand at roadside invalid. If the screening demand is invalid, there are no grounds for the breath sample. [ 52 ] Defence also raised the issue of the accused not being advised of his rights to counsel before providing the breath sample into the ASD: . . .They could have warned him. They could have provided his right to counsel at that stage. The accused, only after he is given a breath demand and a fail warning comes up on it, is advised of his right to counsel.

At that stage, he says no, but that doesn't mean that he'd have said no had he had the opportunity to phone beforehand, before the evidence was taken from him to give the grounds to make a breath demand. [14] [ 53 ] Defence next argued that the breath samples were not taken as soon as practicable. The police were dilatory in their effort to transport the accused to the RCMP detachment in Martensville. There was no reason to look after the accused’s vehicle until the RCMP officers from Martensville arrived to take over and have it moved.

If there is undue delay, it is incumbent on the Crown to explain that delay. [ 54 ] Defence concluded its submissions by advancing a two-pronged approach in analyzing the breath samples: That then gets us, I respectfully submit, to two different types of analysis in terms of the -- the breath samples. Should the evidence be excluded pursuant to Grant ? And the evidence should be excluded on a 24(2) analysis if you come to the conclusion that the breath demand was as the accused recalls it to be, based on reasonable suspicion that there was alcohol -- reasonable grounds to suspect there was alcohol in his body.

If that is the case, and if the officer did not have that reasonable suspicion, which I -- which I would submit is overwhelming in the evidence that he did not, then, of course, it's an illegal breath demand that follows. He's arbitrarily detained. He's taken back to the station. He's held for a significant period of time before he's released, and that would be clearly the case for the exclusion of evidence. If you are to find that the new legislation under

Section 320.27(2) , the mandatory alcohol screening legislation, is unconstitutional, well, then, of course, they'd have had to have those grounds. That would then make the evidence exclusionary, as well, because you will see from our notice that we've submitted, we've suggested that there were three available remedies for you under 24(1), and those three, as set out are, firstly, a declaration that

Section 320.27(2) of the Criminal Code is unconstitutional and therefore of no force and effect; secondly, a judicial stay of the charges pursuant to 24(1) of the Charter ; and thirdly, any other remedy this Honourable Court deems fit to impose. [15] [ 55 ] To assist with the Grant analysis, defence points to some of the shortcomings in the Crown’s case. Firstly, defence submits that – even if the new legislation is constitutional – there has to be an explanation as to what that fail result means; in other words “there has to be some indication that an offence has been committed by the fail result.

Now, we know that there was no offence being committed here with respect to impairment. So, it’s obvious, then, that this is about over .08”. [16] [ 56 ] To that end, defence takes issue, and submits that there is no clear evidence as to what the accused’s reading was. Testimony that a person is over 80 milligrams percent is not the same as evidence that states that a person has over 80 milligrams of alcohol in 100 millilitres of their blood. The test results must be clearly and unambiguously stated.

Since we do not have a Certificate of Analysis of the roadside ASD test, we have to rely on the officer’s testimony to determine if the accused had a breath reading in excess of 80 milligrams of alcohol in 100 millilitres of blood. [ 57 ] Defence then briefly alluded, in their argument, to the issue of an accused’s rights and obligations when arbitrarily detained, and proceeded to argue that the police officer in this case failed to administer the approved roadside screening test “forthwith” as required by s. 254(2) of the Criminal Code .

Failure to administer the screening test in accordance with the requirements made it

impossible to demand a breath sample as there was no basis for it. [ 58 ] The Crown’s submissions were presented by Mr. Brûlé who supports the Attorney General’s position that s. 320.27(2) of the Criminal Code is constitutional, and Mr. Pilon who responded to the other issues raised by the defence. [ 59 ] Mr. Br ûlé initially took the position that a ruling on the evidentiary issues should be made before the constitutionality of s. 320.27(2) of the Criminal Code is determined. [ 60 ] If there is no violation of the accused’s ss. 8 and 9 rights then the constitutionality of the new provision becomes moot. Mr.

Brûlé’s position may be summarized by directly quoting part of the summation: Now, based on the nature of the notice that was received and based on argument today, it is my understanding -- and I can be corrected if I'm wrong -- is that the

Section 8 and 9 arguments are intrinsically linked and are based solely on the argument that there is required to be, at a constitutional minimum, suspicion – a suspicion standard in relation to the ASD demand, that a mandatory approved screening demand without any grounds would be constitutionally non-compliant. I didn't hear any separate

Section 9 argument. My understanding is, is that the

Section 9 argument flowed from the alleged impropriety of

Section 8. As it then relates to the reason why we're suggesting that the constitutional argument on constitutionality of the legislation itself needs to be bifurcated is, again, based on the same judicial principle of judicial resources and the appropriate use of those resources, that until the Crown knows what the alleged violation actually is, and there's a ruling by the Court, only then should the Court -- or should the Crown be called upon, as the AG, to defend the legislation pursuant to

Section 1. [17] [ 61 ] Secondly, Mr. Brûlé argued that it is also necessary to determine first whether the police officer making the demand and administering the test actually complied with the legislation. [ 62 ] If there is technical compliance, and no violation of ss. 8 and 9 of the Charter , then there is no need to consider the next step, namely whether the new provision (s. 320.27(2)) can be saved by s. 1 of the Charter . Mr. Br ûlé concluded the first part of his argument as follows: I think, from a general perspective, I can advise that the AG is taking the position that the legislation itself does not violate

Section 8 or

Section 9, and so at this stage, we are actually not conceding that there is a violation that would even require getting to step -- of the -- what would be the Oakes analysis under whether or not it's saved pursuant to

Section 1. [18] [ 63 ] Defence disagreed with Mr. Brûlé’s sequential approach: I don't see a separation of one from the other. The only issue here is whether the officer had the constitutional grounds to make a breath demand without any basis in fact in terms of reasonable grounds or reasonable suspicion. [19] [ 64 ] Mr. Pilon then made submissions on behalf of the Provincial Crown. He characterized the two police officers as honest witnesses who did their best to testify in a forthright manner. The accused, on the other hand, suffered from a case of selective memory.

He specifically remembers the words “reasonable grounds to suspect” used by the officer making the roadside demand, but virtually nothing else. Taking into account that the accused displayed no signs of impairment, it only makes sense that Constable Rathgeber made the mandatory demand. His testimony on this point is totally credible. [ 65 ] Mr. Pilon further submits that the technical requirements of the s. 320.27(2) demand have been complied with. The police officer was in possession of the ASD notwithstanding that he did not have it on his person when he made the demand.

Further, any delay in obtaining the sample at roadside was fully explained and supported by jurisprudence from superior courts. [ 66 ] Any delay in departing the scene and obtaining breath samples did not breach the “as soon as practicable” requirement. In this case, what happened during the timeline in question is more important that the timeline itself. [ 67 ] With respect to the officer’s testimony as to the blood alcohol content, the Crown takes the position that it is clear what the officer meant when he used the words “milligrams percent”.

He explained what the ‘fail; on the ASD meant, and we have a Certificate (Exhibit P-4), which speaks to the blood alcohol content of the breath samples obtained at the detachment.

[ 68 ] As far as the arbitrary detention argument is concerned, the Crown states that the police are authorized by statute and the common law to stop motorists and check for, among other things, sobriety. [ 69 ] After a brief exchange between the Court and defence, it was agreed that there was no s. 10(

b) to consider in this case. [ 70 ] Mr. Brûlé stated that it was the Attorney General’s intention to file a brief to more fully expand its reasons as to why the new s. 320.27(2) does not infringe s. 8 of the Charter . [ 71 ] Even if there was a breach of s. 8, and the stop gave rise to a detention within the meaning of s. 9, s. 1 comes to the rescue as it has in the past. [ 72 ] Mr.

Owens responded that if a warrantless search can be compelled without any reasonable suspicion being present, as was the case here, it is a violation of the person’s right to silence and the Charter protected right not to incriminate himself. [ 73 ] Further, defence argues that the so called “sniffer dog” cases are applicable in this case – “the use of a sniffer dog is no different that the use of a sniffing machine” [20] , and any warrantless search should be, at a minimum, based on reasonable suspicion. [ 74 ] At the resumption of the trial on June 15, 2020, the parties amplified their respective positions. [ 75 ] With respect to the constitutional validity of s. 320.27(2) , defence argues that since that

section validates a groundless search it is unconstitutional. The sniffer dog cases clearly stated that “you can’t have a search without reasonable suspicion”. [ 76 ] Defence submits that this particular legislation should not be saved by s. 1 of the Charter . Aside from setting a bad precedent, this legislation is not required and is unlikely to make the roads any safer.

Education is the best way to reform bad driving habits. [ 77 ] More concerning for the defence is the possibility that this legislation, rather than reducing fatalities, may lead to unintended consequences, such as racial profiling and needless searches of innocent persons. Moreover, just because other countries, such as Australia and Ireland, have similar legislation does not mean that we should. Sacrifices to public safety is the price we pay for living in Canada. Even so, incidents of impaired driving in Canada are showing a marked decrease.

This would tend to show that Canadian laws are already effective in controlling impaired driving. To target most law-abiding citizens in order to catch a small portion of offender’s is illegal. This legislation empowers police officers to violate citizens’ Charter rights under the guise of public safety.

Even if the legislative intent was commendable, the legal problems created by it may outweigh the salutary effect of the legislation and therefore should not be saved by s. 1. [ 78 ] To buttress this argument, defence made reference to a few cases and the submissions to the House of Commons Standing Committee on Justice and Human Rights by the Canadian Civil Liberties Association (dated Sept. 18, 2017). [ 79 ] In its submissions, the CCLA , while recognizing “that impaired driving has been and continues to be a leading cause of injuries and deaths on Canada’s roadways” [21] , expressed a number of concerns with the proposed Bill C-46, the most troubling being s. 320.27(2) (p 2 of the Report). [ 80 ] In its view, this

section “invades an area of personal privacy essential to the maintenance of [the individual’s] human dignity.” [22] [ 81 ] Further, CCLA was concerned that this provision may disproportionally target racial minorities, who are already stopped much more frequently than white Canadians (p 8 of Report). [ 82 ] On balance, therefore, while the proposed s. 320.27(2) was viewed as being a pressing and substantial objective, the CCLA concluded that s. 1 of the Charter should not be used to justify rights infringements, and recommended that it should be removed from the Bill. [ 83 ] Defence, in support of its argument that s. 1 should not be used to justify any breaches of the Charter by s. 320.27(2), made reference to the Supreme Court’s decision in Frank v Canada (Attorney General0. [23] In Frank , two Canadian citizens who lived in the United States were denied the right to vote in Canada on the basis that they lived abroad for more than five years. [ 84 ] They argued that this unjustifiably violated their rights under s. 3 of the Charter .

The Ontario Court of Appeal found that the infringement of s. 3 could be saved by s. 1, as the impugned provision was rationally connected to the social contract objective, minimally impairing and proportional.

[ 85 ] The Supreme Court allowed the appeal. Wagner CJ, for the majority, reiterated the Court’s previous position that two central criteria must be met for a limit on a Charter right to be justified under s. 1 . First, the objective of the measure must be pressing and substantial, and, secondly, the means by which the objective is furthered must be proportionate. The proportionality inquiry requires courts to balance the interests of society with those of individuals.

A “natural attitude of deference” to Parliament may be appropriate in some instances, “but it is not appropriate posture for a court reviewing an absolute prohibition of a core democratic right” (paras 43 and 44). [ 86 ] Mr. Brûlé, on behalf of the Saskatchewan Attorney General, argued that there is not a s. 8 or 9 violation, but if there is a violation s. 1 comes to the rescue. [ 87 ] Clearly, on the evidence presented, ss. 7 and 10(

b) need not be considered by the Court at all. [ 88 ] The legislation is not draconian. It is based on common sense. The legislative intent was to detect people who wished to either deceive police about their alcohol consumption or to mask it, as was in fact attempted by the accused in this case. The primary objective of the provision is to reduce impaired driving and deter impaired driving. It has minimal impact on the individual and it satisfies the proportionality test.

It is limited to motorists, and is not a general search power – this is completely different than the “sniffer dog” searches, which do require a reasonable suspicion. [ 89 ] Crown argues that defence did not challenge the nature of the stop. Defence did not challenge any of the provisions in The Traffic Safety Act , SS 2004, c T-18.1 [ STSA ]. This was an authorized stop. Police have a broad discretion to detain drivers engaged in a highly regulated activity for the purpose of investigating, among others, for driver sobriety.

The ASD test does not determine guilt or innocence. [ 90 ] Finally, the Crown argues that it does not need to prove that crime will be reduced before s. 1 can save the legislation. However, the Crown did file a certified copy of the SGI 2018 Saskatchewan Traffic Collision Report . This report contains statistics from 1998 to 2018 compiled by SGI. While this report shows a modest decline in collisions involving alcohol over the last twenty years, it also shows that impaired driving remains one of the top contributing factors in fatal collisions in Saskatchewan (p 67 of the Report).

It also shows that there is a marked increase in alcohol-related collisions on weekends (p 77 of the Report). The age group most represented in the accidents is from 18 to 35 (p 79 of the Report). Not surprisingly, the larger urban centres are impacted more than the remote rural ones.

Regina and Saskatoon combined account for 46% of the province’s population and 45% of the collisions (p 83 of the Report). [ 91 ] The Crown concluded by arguing that this Court does not have the jurisdiction to issue a declaration that s. 320.27(2) is unconstitutional, but, rather, is limited to determining whether the evidence ought to be excluded or not. In support of this position, the Crown relies on R v Lloyd . [24] Analysis The second Charter Notice [ 92 ]

Section 11(

b) reads as follows: 11. Any person charged with an offence has the right . . .

b) to be tried within a reasonable time. [ 93 ] As previously stated, the Notice was filed on April 6, 2020, approximately nine months after the commencement of the trial (Sept. 3, 2019). [ 94 ] The chronological time frame of this matter is as follows: 1) Mr.

Morrison was stopped by police on January 11, 2019; 2) the Information was sworn on January 22, 2019; 3) the accused’s first appearance in court was on February 25, 2019; 4) first appearance by defence counsel in court was on March 21, 2019; 5) pleas and trial date set on March 26, 2019; 6) trial commenced on September 3, 2019; 7) first continuation date: November 19, 2019; 8) second continuation date: January 2, 2020 (trial did not proceed due to judge’s illness); 9) third continuation date: June 15, 2020 (trial concluded and adjourned for decision on July 3, 2020). [ 95 ] The applicant, Mr.

Morrison, has the onus to establish the Charter breach on a balance of probabilities. [ 96 ] Defence counsel argued that a 17 month delay – from start to finish – is too long to conclude a case which is relatively simple. The prejudice to the applicant was high. His driving privilege was suspended. [ 97 ] The unreasonable delay, combined with the high prejudice, establishes the Charter breach. Defence counsel submits that R v

Morin , [25] as well as the numerous cases that followed it, still applies. [ 98 ] The Crown submits that the evidence was essentially completed on November 19, 2019. The January 2, 2020 date was reserved for the conclusion of arguments. The January 2 date could not be utilized because of the trial judge’s illness. The parties did not seek a remedy pursuant to s. 669.2 of the Criminal Code of Canada (applying for the appointment of another judge to take over carriage of the trial) as it was believed that this was not likely to speed things up in any event.

COVID-19 would not allow the trial to continue in April or May of 2020. [ 99 ] Finally, the Crown stated that the accused could have appealed his roadside driver’s licence suspension and not wait for the proceeding to conclude in Court. Any delay could not be ascribed to the Crown’s conduct. [ 100 ] R v Morin laid out a blueprint for courts to follow when considering whether any given delay is unreasonable. The factors to consider are as follows:

a) length of delay;

b) waiver of time periods;

c) reasons for delay, including: (

i) inherent time requirements; (ii) actions of accused; (iii) actions of the Crown; (iv) limits on institutional resources; (

v) other reasons for delay; and

d) prejudice to the accused. [ 101 ] In Morin , the total time to bring the matter to trial was 14 ½ months, about 12 months of which was institutional delay. The Supreme Court held that the issue of delay should not be subject to any mathematical formula, but rather to the balancing of societal interests versus that of the accused. In doing so, it is necessary to consider the above-noted factors. After considering these factors, the Court decided that the 14 ½ month delay was not so unreasonable as to trigger a Charter remedy.

Sopinka J. was of the view that a delay application should not be undertaken hastily: The inquiry, which can be complex. . .should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reasonableness by reference to other factors such as prejudice.

If for example the applicant is in custody, a shorter period of delay will raise the issue. ( Morin , para 31 ) [ 102 ] In other words, it seems that each s. 11(

b) application has to be determined on its particular facts. [ 103 ] In 2016, the issue of delay was again addressed by the Supreme Court in R v Jordan , [26] wherein the Court set out some new guidelines when considering a s. 11(

b) application. In Jordan , the Court was dealing with a total delay of 49 ½ months. After allowing that 5 ½ months of the delay was attributed to the defence, it held that the remaining 44 months delay was unreasonable and directed a stay of proceedings. [ 104 ] The Supreme Court, in an attempt to discourage a culture of “delay and complacency”, set a presumptive ceiling – 18 months for cases going to trial in provincial courts and 30 months for cases proceeding in the superior courts.

In cases where the presumptive ceiling was exceeded, the delay would be presumptively unreasonable. [ 105 ] The Court did not say that a delay below the presumptive ceiling could not be challenged; however, the onus would be on the defence to show that the delay was unreasonable: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable.

To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases. (para 48) [ 106 ] Delay attributed to exceptional circumstances do not count against the Crown.

Therefore, even if the total delay (minus any defence delay) exceeds the 18 month presumptive ceiling, the Crown may rebut this presumption by showing that that there were exceptional circumstances and that the delay is reasonable: Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. (para 69) [ 107 ] Being mindful of these dicta, I will briefly examine the time frame in our case. From the time of the charge, January 11, 2019, to the commencement of the trial, September 3, 2019, some 8 ½ months expired. This did not constitute delay.

[ 108 ] The trial, which went all day, did not conclude and was adjourned for continuation on November 19, 2019. After a full day, all evidence was concluded and the matter was adjourned to January 2, 2020, for completion of submissions. Both the November and January dates were selected as the earliest and mutually convenient days. Clearly no delay to this point. [ 109 ] If the matter had concluded on January 2, 2020, then the time frame from charges laid to trial concluded would have been under 12 months.

So what occurred between January 2, 2020 and June 15, 2020? [ 110 ] At the end of 2019 the trial judge became ill. Following hospitalization and surgery he was released from hospital on January 14, 2020. By the middle of March he was prepared to return to work. On March 20, 2020, the Saskatchewan Provincial Court announced that as of March 23, 2020, all trials would be adjourned to May 29, 2020 due to the COVID-19 pandemic.

Trials in the Saskatoon judicial district resumed on June 8, 2020 and the applicant’s matter was scheduled for June 15, 2020. [ 111 ] The total delay, therefore, falls below the presumptive ceiling. Defence failed to show that this case took markedly longer than it reasonably should have. The Crown cannot be blamed for any delay between January 2, 2020 and June 15, 2020. [ 112 ] Even if the delay had exceeded the presumptive ceiling, I would have found, on the facts of this case, that there were exceptional circumstances. [ 113 ] Accordingly, the applicant’s s. 11(

b) rights were not breached and his application is dismissed. [ 114 ] Looking at the arguments contextually, and having regard to the order in which they were presented, I believe that the first issue to determine is whether the mandatory alcohol screening as permitted by s. 320.27(2) of the Criminal Code violates a person’s right under ss. 8 and 9 of the Charter , and, if so, is MAS saved by s. 1 of the Charter . [ 115 ]

Section 320.27(2) of the Criminal Code reads as follows: If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [ 116 ]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search and seizure. [ 117 ]

Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. [ 118 ]

Section 10(

b) of the Charter provides: Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. [ 119 ]

Section 1 of the Charter states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [ 120 ] In the present case, the officer who initiated the stop did not observe any unusual driving by Mr. Morrison. There were no traffic violations; the vehicle looked sound mechanically and there was no information from any source that the driver may have consumed alcohol or be impaired. As the police officer testified, he believed he had the authority to stop Mr.

Morrison pursuant to s. 209.1(1) of the STSA to check for driver’s licence, registration, vehicle fitness and driver sobriety. [ 121 ]

Section 209.1 (1) of the STSA reads as follows: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer:

(

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities. [122] In this case, the two police officers were in uniform, driving a marked police vehicle and on duty. It seems that the pre-conditions for a vehicle stop were met.

Further, the Saskatchewan Court of Appeal in R v Suteau, 2019 SKCA 115, 382 CCC (3d) 118,considered the issue of whether a police officer had authority to detain an accused person (in the context of a s. 9 Charter breach), andheld that they did. [123] Caldwell, JA, in holding that there was no s. 9 Charter breach, stated as follows: . . . the police do not need to hold a reasonable suspicion that a crime or traffic safety infraction has been committed to randomly stop and detain a motorist under s. 209.1.[27] [124] Police also possess the power to randomly stop vehicles to check for driver’s licence, insurance and driver sobriety, at commonlaw.

During the last thirty-five years, superior courts, including the Supreme Court of Canada, have periodically addressed this issue. [125] In R v Dedman, (SCC), [1985] 2 SCR 2 [Dedman], the driver was stopped under the spot check programknown as R.I.D.E. (Reduce Impaired Driving in Etobicoke), whose main purpose was to reduce impaired driving. The driver wascharged with refusal to provide a breath sample. He was acquitted at trial, and the acquittal was upheld by the Ontario Supreme Court. The Crown appealed to the Ontario Court of Appeal, which set aside the acquittal.

The accused’s appeal to the Supreme Court wasdismissed.

The majority, as per Le Dain, J held that even though the random stop was prima facie an unlawful interference with anaccused’s liberty, because it lacked statutory authority, it was, nonetheless, “. . . not an unreasonable interference: as it comported withthe objective of the R.I.D.E. program, “. . . which is a measure to improve the deterrence and detection of impaired driving, a notorious cause of injury and death”.[28] [126] Five years later, the issue of whether randomly stopping a motorist for the purpose of checking a driver’s licence and insurancepursuant to the Ontario Highway Traffic Act, RSO 1990, c H.8, violated s. 9 of the Charter made its way before the Supreme Court. (R vLadouceur, (SCC), [1990] 1 SCR 1257 [Ladouceur]). [127] In Ladouceur, an accused who was randomly stopped for the purpose of having his papers checked, was found to be asuspended driver.

He was convicted and his conviction was upheld on appeal. On further appeal, the Ontario Court of Appeal held thatthe random stopping authority violated s. 9 of the Charter and could not be saved by s. 1 of the Charter. However, his conviction wasupheld on the basis that he acknowledged that he knew that he was suspended. Mr.

Ladouceur’s further appeal to the Supreme Courtwas dismissed, and the top Court stated that whereas Dedman clearly stated that programs such as R.I.D.E. enabled police to stop drivers,and that method could be defended under s. 1 of the Charter, the police could also randomly stop vehicles when they are statutorilyempowered to do so. [128] Since then, the Supreme Court has on numerous occasions reaffirmed its earlier stated position.[29] [129] The Supreme Court in Hufsky, and R v Thomsen, (SCC), [1988] 1 SCR 640 [Thomsen], again reiterated theimportance of the random stop power in regulating safety and protecting the public on the highways.

Any limit on the s. 10(

b) rights atthe roadside screening stage were justified (Thomsen, para 22). [130] In 2005, the Supreme Court again addressed the issue of random roadside stops in the context of a challenge under ss. 7 and10(

b) of the Charter.

The Court in Orbanski examined the balance between a driver’s Charter rights and the greater public policy ofprotecting life and property being advanced by the federal government and provincial legislatures (Orbanski, para 27), and concludedthat the power of police to screen drivers for sobriety should be interpreted flexibly having regard to the unique challenges faced bypolice officers in the field when trying to determine sobriety while at the same time being mindful of a motorist’s rights. [131] If police act reasonably, and if their duty “can be performed at the site of the detention, with dispatch, with no danger to thesafety of the detainee and with minimal inconvenience to the detainee” (Orbanski, para 46), then any limit, or presumably, any breach ofa motorist’s right to counsel is justified under s. 1 of the Charter (Orbanski, para 58).

[ 132 ] Very recently, the Alberta Court of Queen’s Bench, dealt with a motorist’s rights under s. 9 of the Charter , when the motorist was randomly stopped by a police officer who demanded that he provide a breath sample pursuant to the new s. 320.27(2) of the Criminal Code . ( R v Labillois , 2020 ABQB 200 [ Labillois ]). Mr. Labillois was stopped by an RCMP constable on January 7, 2019. The purpose of the stop was to obtain a breath sample pursuant to s. 320.27(2) of the Criminal Code . Mr.

Labillois argued that the new provision does not allow a police officer the right to stop a motor vehicle, and since the constable had no other reason to pull him over, he argued that his s. 9 Charter rights were breached; he sought to have the Certificate of Analysis excluded at trial. [ 133 ] The Provincial Court Judge did not find a s. 9 Charter breach. [ 134 ] Mr. Justice K.D.

Yamauchi, sitting on appeal, also concluded that, having regard to the Alberta Traffic Safety Act , RSA 2000, c T-6 , as well as the Supreme Court’s pronouncements in Dedman , Ladouceur and Orbanski , empowered the constable – both under statute and common law – to randomly stop Mr. Labillois. The new

section gave the police officer the authority to make the demand (para 34). [ 135 ] He concluded his decision as follows: [42] Had this Court found a breach of Charter s 9, it would not have excluded the evidence in any event. Cst. Debow's conduct was not serious. He was following his training of what was required of him under the newly-minted Criminal Code s 320.27(2). As well, he was abiding by the directions that courts and ATSA s 166(2) provide concerning random stops. [43] The traffic stop and the Demand had little impact on Mr. Labillois's rights.

The Demand was minimally intrusive, and it reveals no biographical or personal information. The administering of the Demand required detention for a minimal amount of time. [44] Drinking and driving is a serious crime that is prevalent throughout society. Parliament has recognized this through countless amendments to the Criminal Code , the most recent of which included Criminal Code s 320.27(2). The evidence of the breath sample is highly probative in the case at bar. [45] As a result, even had this Court found a breach of Mr.

Labillois's Charter s 9 rights, it would not have excluded the Certificate of Analysis. [46] Furthermore, this Court would have found that the screening procedure, as set forth in Criminal Code s 320.27(2), meets the two-

part Charter s 1 analysis. [30] [ 136 ] Having regard to all of the following, I find that Constable Rathgeber was authorized under s. 209.1(2) of the STSA , as well as the common law, to effect the random traffic stop of Mr. Morrison. According to the constable’s testimony, he stopped Mr. Morrison for the purpose of checking for driver’s licence, registration and sobriety. He understood that the new amendment to the Criminal Code as it pertains to the ASD tests authorized him to make a demand without having any reasonable suspicion about Mr. Morrison having consumed any alcohol.

Constables Rathgeber and Schreiner comported themselves in a professional and businesslike manner. The detention was relatively brief, and the process of obtaining the breath sample was minimally intrusive. Conversely, the public utility of police officers having the ability to detect alcohol in drivers who otherwise do not display any observable signs of alcohol consumption is very high. [ 137 ] I find that Mr. Morrison’s s. 9 Charter rights were not breached.

Were the accused’s s. 8 Charter rights violated ? [ 138 ] Under the new provision, just like under the previous section, a motorist upon whom a demand was made to provide a breath sample into the ASD is obliged to comply. Failure or refusal to do so will likely result in being charged with refusal to provide a breath sample. The major difference, however, is that under s. 320.27(2) of the Criminal Code a police officer is not required to formulate any grounds or even reasonable suspicion about the driver’s sobriety prior to making the demand. [ 139 ] This was the situation in the case before us.

The police officer, acting on his own initiative and in furtherance of a detachment policy which encouraged testing of all drivers between 6:00 p.m. and 6:00 a.m., made the demand on the accused even though he lacked reasonable suspicion about him having any alcohol in his system.

[ 140 ] There may be an argument that a person in a vehicle has a lesser expectation of privacy than a person in his home. However, there is little dispute that a demand for a sample of breath into the ASD may breach the rights protected by s. 8 of the Charter . The Supreme Court in Goodwin held that drivers may have a diminished, but not non-existent, expectation of privacy in their breath.

A demand to blow into the ASD triggers the protection of s. 8 ( Goodwin , para 22 ). [ 141 ] The Supreme Court has provided a 3-step analysis with respect to s. 8 of the Charter : 1) Was the search authorized by law?; 2) Was the authorizing law reasonable?; 3) Was the search carried out in a reasonable manner? ( R v Mann , 2004 SCC 52 , [2004] 3 SCR 59). Step 1: Was the search authorized by law ? [ 142 ] Mandatory Alcohol Screening is explicitly authorized by s. 320.27(2) of the Criminal Code . The related traffic stop is an existing police power emanating from common law and statute.

Step 2: Was the authorizing law reasonable ? [ 143 ] Whether a state is justified in violating a person’s privacy interests is a contentious debate. While it is true that s. 8 does not provide absolute protection against a state’s encroachment on a person’s privacy rights, it is also true that courts, including the Supreme Court, always required a minimum standard of reasonable suspicion in order to conduct a search. ( R v Chehil, 2013 SCC 49 at para 22 , [2013] 3 SCR 220). Most individuals want to be kept safe but they also want to be left alone.

Courts, when analyzing this duality, tended to favour the latter interest.

The Supreme Court in Hunter v Southam [31] held that a person’s privacy interests usually trump a state interest in detecting and preventing crime and only yield “at the point where credibly based probability replaces suspicion” (para 167). [ 144 ] In the context of breath samples, Justice Karakatsanis, in Goodwin , stated that using a person’s body without his consent to obtain information about him invades an area of personal privacy, which is essential to his dignity. [ 145 ] Even if we agree with the argument that a roadside breath demand result is not determinative of a person’s guilt, and is only the first step in the investigative process, there is no denial that a “fail” result will furnish solid grounds for an evidentiary breath test which may have serious consequences for an accused.

Step 3: Was the search carried out in a reasonable manner ? [ 146 ] Of necessity, this point deals with delay.

Section 320.27(2) differs from its predecessor in two ways. [ 147 ] First, it has the requirement of immediacy, whereas the previous provision, as it related to screening demands used the word “forthwith”. Courts generally interpreted “forthwith” to mean “immediately or without delay”. Whether Parliament’s attempt to provide clarity on this point is successful remains to be seen, as the word “immediately” may be scrutinized as much as “forthwith” was. [ 148 ] Secondly, s. 320.27(2) requires that an ASD be in the possession of the officer(

s) at the time they make the demand. This does represent a change in that it means that police can no longer detain a person until an ASD becomes available or is brought from another location. There is an increased sense of urgency as it relates to timing. [ 149 ] The test may take place either in the driver’s vehicle or in the patrol car. It seems the police officer administering the test has the discretion to determine where the test will be administered.

[ 150 ] In short, therefore, even though the first and third steps were complied with in the instant case – that is the search was authorized by law and was carried out in a reasonable manner – the second step (was the authorizing law reasonable) is more problematic. [ 151 ] Circumstances in which an accused is being asked to incriminate himself, such as providing a breath sample, where there are no apparent or any grounds present, and in the absence of any suspicion as it relates to his demeanour, or driving ability, or alcohol consumption and which is grounded entirely in legislative fiat, ought to be subject to constitutional protection enshrined in our Charter of Rights and Freedoms . [ 152 ] Accordingly, I find that s. 320.27(2) of the Criminal Code does infringe on s. 8 of the Charter .

The issue, then becomes whether s. 320.27(2) of the Criminal Code is saved by s. 1 as a reasonable limit that is demonstrably justified in a free and democratic society ? [ 153 ] The test to determine whether the limit imposed on s. 8 of the Charter by s. 320.27(2) of the Criminal Code is reasonable and demonstrably justified in a free and democratic society is set out in R v Oakes . [32] [ 154 ] The test focuses on two main considerations: 1) the legislative objective must be sufficiently important to warrant restricting or overriding the Charter right; and 2) the means employed to achieve the legislative objective must be proportional to the objective. [ 155 ] According to Oakes , the Crown bears the burden of proving, on a balance of probabilities, that the infringing legislative provision is reasonable and justifiable.

The test requires that the following be considered:

a) is the enacted law pursuing a pressing substantial objective?

b) is the law rationally connected to that objective?

c) does the law impair the right or freedom as little as possible? and

d) is there a proportionality of effects between the deleterious and salutary effects of the law? [ 156 ] M. R. McCreary, J, in Robb v R , 2019 SKQB 295 at para 22 , wrote as follows: In Bedford [33] at para 126 , the Supreme Court of Canada summarized the approach to be taken under the Oakes test: As a consequence of the different questions they address, s. 7 and s. 1 work in different ways. Under s. 1, the government bears the burden of showing that a law that breaches an individual’s rights can be justified having regard to the government’s goal.

Because the question is whether the broader public interest justifies the infringement of individual rights, the law’s goal must be pressing and substantial. The “rational connection” branch of the s. 1 analysis asks whether the law was a rational means for the legislature to pursue its objective. “Minimal impairment” asks whether the legislature could have designed a law that infringes rights to a lesser extent; it considers the legislature’s reasonable alternatives.

At the final stage of the s. 1 analysis, the court is required to weigh the negative impact of the law on people’s rights against the beneficial impact of the law in terms of achieving its goal for the greater public good. The impacts are judged both qualitatively and quantitatively. . .

Firstly, then, is the enacted law ( s. 320.27(2) ) pursuing a pressing and substantial objective? [ 157 ] As already referenced above, the Supreme Court, indeed courts at all levels, have lamented the loss, destruction and “carnage” caused by drunk drivers and the corresponding need for law enforcement personnel to effectively deal with the scourge of impaired drivers-on Canada’s roads, streets and highways. [ 158 ] Governments of different political ideologies passed various amendments to the Criminal Code over the years with the aim of

assisting police to deal more effectively with drivers who drink and drive. This sentiment crossed party lines and, not surprisingly, had the support of a large segment of the population. [ 159 ] The Minister of Justice and Attorney General of Canada, when addressing the House of Commons on May 19, 2017, stated the objective of Bill C-46,

Part 2 (which was introduced on April 13, 2017 as

An Act To Amend The Criminal Code (Offences Relating To Conveyances) And To Make Consequential Amendments To Other Acts, SC 2018 c. 21) , as follows:

Part 2 of the bill would repeal all of the transportation related provisions in the Criminal Code and replace them with a clear, coherent structure. Over times, the Criminal Code provisions have become too complex and difficult to understand.

Part 2 also proposes substantial reforms to strengthen the law of alcohol – impaired driving and address existing challenges with detection, enforcement and prosecution. ( House of Commons Debates , Volume 148, Number 181, 1 st Session, 42 nd Parliament) [ 160 ] Parliament assented to this act on June 21, 2018, and

Part 2 – which contains s. 320.27(2) of the Criminal Code – came into effect on December 18, 2018. [ 161 ] Parliament’s objective and legislative intent are often most poignantly summarized in the

preamble to the legislation.

Section 13 of the

Interpretation Act , RSC 1985, c I-21 , states that a

preamble “shall be read as part of the enactment intended to assist in explaining its purpose and object”. [ 162 ] I believe that the

Preamble to Bill C-46 clearly states the legislative objective and the need to act sooner rather than later in the effort to reduce and deter impaired operation of motor vehicles: Firstly, the

Preamble of the Bill C-46 explicitly states the purpose and pressing need for the legislation.

It reads as follows: Whereas dangerous driving and impaired driving injure or kill thousands people in Canada every year; Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances; Whereas it is important to deter persons from driving while impaired by alcohol or drugs; Whereas it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired driving and exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms ; Whereas it is important to simplify the law relating to the proof of blood alcohol concentration; Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving; Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood; Whereas it is important that the federal and provincial laws work together to promote the safe operation of motor vehicles; And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption of drugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaired

driving. [163] Based on the above, I find that the Crown has discharged its burden under this heading. The purpose of the law, being toaddress the issue of impaired driving in Canada, cannot be characterized as anything less than pressing and substantial. Impaired drivingremains the leading criminal cause of death in the country (Jokinen, K. and Keen, P

(2019) Impaired Driving and Other Criminal CodeDriving Offences: A Practitioner’s Handbook, Toronto: Emond Montgomery). Courts when dealing with breaches of Charter rights forthis purpose have relied on s. 1 to hold that they were demonstrably justified. Secondly, is the law rationally connected to the objective? [164] The rational connection test is inextricably linked to the “actual objective” of the infringing legislation. Plain reading of s.320.27(2) suggests that Parliament wanted to enhance the ability of police to detect alcohol consumption by providing them with anadditional investigative tool.

Secondly, by allowing police to demand a breath sample into the ASD without any suspicion that the drivermay have consumed alcohol may put drivers on notice that the law has very little tolerance for mixing drinking with driving and the riskof taking a “chance” is simply not worth it. This may have the desired effect of deterring impaired driving.

Any deterrence wouldimprove the overall objective of reducing injury or death by impaired drivers. [165] Courts have recognized for a long time that detection of impairment by police officers through observation or interrogation isoften ineffective (LeDain J in Thomsen). [166] The Minister of Justice, on more than one occasion, stated that the ultimate goal of

Part 2 of Bill C-46 was to reduce the numberof injuries and fatalities caused by impaired drivers. The

section dealing with mandatory alcohol screening would greatly assist police indetecting drivers who consumed alcohol prior to driving and who might otherwise escape detection. [167] I find, therefore, that the law is rationally connected to the objective of the legislation. Thirdly, does the law impair the right or freedoms as little as possible? [168] To pass the minimal impairment stage, the government must have considered and reasonably rejected any viable alternativeswhich would have constituted a lesser intrusion upon Charter rights (RJR-MacDonald Inc. v Canada, (SCC), [1995] 3SCR 199 at paras 160 and 163).

Put another way, were there alternative schemes that were capable of achieving the laws objective in areal and substantive manner, keeping in mind that the underlying purpose of s. 320.27(2) was the detection of alcohol in a driver. [169] Previous attempts or strategies to detect alcohol in a driver such as observation for signs of impairment like slurred speech orbloodshot eyes, smell of alcohol, questioning of a driver about his alcohol consumption and field sobriety tests have all had varyingdegrees of success but also of failure.

And since driving, as stated in Orbanski, is not an inherent right and is subject to extensiveregulations to protect life and property, and since I find that there are no obvious or apparent less restrictive schemes that the governmentcould employ, I find that the Crown has proven, on a balance of probabilities, that the legislation impairs the accused’s rights in aminimal way.

Fourthly, is there a proportionality of effects between the deleterious and salutary effect of the law? [170] For reasons noted below, I find that s. 320.27(2) achieves proportionality between its deleterious and salutary effects. [171] The salutary effects of the challenged legislation may become more apparent with the passage of time. However, even at thisearly stage it is becoming clear that it is helpful to police in detecting the presence of alcohol in drivers who do not display readilydiscernible symptoms. The present case is an example of that.

Parliament, and society in general, take a very dim view of drivers whoconsume alcohol and then proceed to drive and endanger other Canadians using the streets, roads and highways. Any reasonablelegislation that would act as a deterrent and encourage responsible behavior will benefit and safeguard society. Drunk drivers are morelikely to kill or injure than sober drivers – less intoxicated motorists, less victims.

[172] Obviously, s. 320.27(2) also has a deleterious effect. Every person in a free and democratic society should, to the greatestextent possible, be free from a warrantless search or seizure especially when no grounds or reasonable suspicion exist. This becomeseven more concerning when that search or seizure incriminates the person. [173] However, the new provision, even though it eliminates the reasonable suspicion requirement, is grounded to an extent on thepremise that it is a supplemental investigative tool that is not determinative of a person’s guilt and is subject to judicial review.

Thesearch is restricted to provision of breath samples. It does not extend to a person’s belongings or his living space. [174] The jurisprudence on roadside screening, while recognizing that it often violated the driver’s

section 8, 9 and 10(

b) Charterrights has for the most part upheld these violations as a reasonable limit under s. 1 of the Charter. The underlying rationale, it seems,was the recognition that impaired drivers are a scourge and danger to society and any reasonable restriction or limit on their freedomswas justified on the basis that it benefited the greater society. [175] Consequently, even though s. 320.27(2) infringes s. 8 of the Charter, the violation is saved by s. 1.

Fifthly, whether Provincial Court has the jurisdiction to determine constitutionality? [176] This issue was considered by the Supreme Court in R v Lloyd. [34] This was the case where an accused was convicted ofpossession of drugs for the purpose of trafficking. Because he was a repeat offender for a similar offence, he was subject to a minimummandatory sentence of one year imprisonment pursuant to s. 5(3)(a)(i)(

D) of the Controlled Drugs and Substances Act, SC 1996, c 19. [177] The Provincial Court Judge declared the provision contrary to s. 12 (guarantee against cruel and unusual punishment) and notrescuable by s. 1. [178] The British Columbia Court of Appeal allowed the Crown’s appeal and set aside the declaration of unconstitutionality.

TheSupreme Court allowed the appeal and held that while Provincial Court Judges do not have the power to make formal declarations that alaw is of no force or effect under s. 52(1) of the Constitution Act, 1982 they do have the power to determine the constitutionality ofprovisions when the issue arises in a case they are hearing. [179] McLachlin CJ, writing for the majority, held that “although he was not required to do so, the Provincial Court Judge in this casehead the power to consider the constitutional validity of the mandatory minimum sentence provision at issue; that he did not err infinding it unconstitutional ...” (para 4). [180] The Court’s position was more expansively articulated in paragraphs [15] to [19]: [15] The law on this matter is clear.

Provincial court judges are not empowered to make formal declarations that a law is of no force oreffect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authoritypossess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properlybefore them. As this Court stated in R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has alwaysbeen open to provincial courts to declare legislation invalid in criminal cases.

No one may be convicted of an offence under an invalidstatute.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, (SCC), [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk andRicard (1986), (BCCA), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K.

Roach, Constitutional Remedies inCanada (2nd ed. (loose-leaf)), at p. 6-25. [16] Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under an invalid statute.Provincial court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issuearises in a case they are hearing. This power flows directly from their statutory power to decide the cases before them. The rule of lawdemands no less. [17] In my view, the provincial court judge in this case did no more than this. Mr.

Lloyd challenged the mandatory minimum thatformed part of the sentencing regime that applied to him. As the Court of Appeal found, he was entitled to do so. The provincial courtjudge was entitled to consider the constitutionality of the mandatory minimum provision. He ultimately concluded that the mandatoryminimum sentence was not grossly disproportionate as to Mr. Lloyd.

The fact that he used the word “declare” does not convert hisconclusion to a formal declaration that the law is of no force or effect under s. 52(1) of the Constitution Act, 1982. [18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimumprovision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander

time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case.

To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [19] The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982 .

It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction. [ 181 ] So whereas this Court does not have the jurisdiction to formally declare that s. 320.27(2) is constitutionally invalid and of no force or effect, it can consider the constitutional validity when the issue arises in a case it is hearing. [ 182 ] In this particular case the issue becomes somewhat moot in light of my finding as to the constitutionality of the impugned provision. [ 183 ] Having regard to the above, it is now necessary to determine whether the requirements of s. 320.27(2) demand have been met. [ 184 ] The first requirement is that the police officer have in his or her possession an approved screening device.

The evidence in this case is that the device was in the police vehicle when Mr. Morrison was pulled over. The police officers knew where it was, they had control over it and they were able to use it when they needed to. I find that they had the approved screening device in their possession. The legislation does not require that the ASD be on the officer’s person when he approaches the driver. In this case, Constable Rathgeber first asked Mr. Morrison for his driver’s licence and registration. The weather was very cold and the device, according to the evidence, needs to be kept in a warm place.

It was prudent to keep the ASD in the police vehicle until such time as it was needed. [ 185 ] I also find that, based on the evidence, the police officers were acting in the course of lawful duty. [ 186 ] The evidence, which I accept, indicates that Constable Rathgeber made a demand on Mr. Morrison for a sample of his breath. Constable Rathgeber testified that this demand was read off a card. I accept his testimony. Any suggestion that the demand used improper language or terminology is of limited utility to the defence as this

section does not require specific language. It must be a demand (rather than a request) and it must be clear as to what is being demanded. There is no indication from Mr. Morrison that he did not understand what the police officer was demanding. [ 187 ] The last requirement of the

section is that the breath sample be provided immediately, which is a change from the previous provision relating to screening demands which used the word “forthwith”. Courts interpreted “forthwith” to mean “immediately or without delay”. It seems to me that, when it comes to timing, under the new provision there is an increased sense of urgency as it relates to timing.

The requirement that a police officer have the ASD in his possession, as opposed to waiting for it as it is brought from another location, also supports the premise that the sample must be taken as soon as possible having regard to all the surrounding circumstances. [ 188 ] In this case, Mr. Morrison was pulled over lawfully, a lawful demand was made with 3 – 5 minutes, (after his licence and insurance were screened and determined to be valid), and after a five minute wait, because Mr. Morrison was smoking.

The test was conducted through the vehicle window. [35] [ 189 ] I find that the immediacy requirement was met. The entire process, from initiating the stop to completing the test took less than ten minutes, and more than half of that time was lost due to Mr. Morrison smoking. [ 190 ] There was some suggestion from Mr. Morrison’s testimony that he kept smoking after he was directed t

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