Her Majesty the Queen - v. -, 2018 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 015 Date: March 8, 2018 Information: 90152230 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Alan Weinbender Appearing: Mr. Brian Hendrickson, QC For the Crown Mr. Mark Brayford, QC For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J Background [ 1 ] The accused, Christopher Alan Weinbender, is charged with impaired driving and driving while his blood alcohol content exceeds .08 per cent. It is alleged that both offences occurred in the very early morning hours of June 24, 2017 near Limerick, Saskatchewan.

[ 2 ] The trial was set for December 14, 2017 at Assiniboia. Prior to trial, defence counsel served and filed a detailed notice of a Charter application. At the commencement of the trial on December 14, the Crown immediately entered upon a Charter voir dire . The only witness called on the Charter voir dire was Constable Jesson Gaunce of the Assiniboia detachment of the RCMP. Each counsel filed extensive written submissions and made very comprehensive oral submissions. I thank them for that. This is my decision on the Charter voir dire .

The Evidence [ 3 ] Constable Gaunce testified that the prior day, being June 23, there was a sports day at Limerick, Saskatchewan. He was on patrol in and around Limerick in the very early morning hours of June 24. At that time, he noticed a vehicle driving on a public road near the sports field. That vehicle had only one headlight. Constable Gaunce stopped the vehicle. The accused was the lone occupant and driver. [ 4 ] The accused produced his driver’s licence and registration. The officer said he detected a slight smell of alcohol and asked the accused if he had been drinking.

The accused said that he had one drink. The officer testified that he then said words to the effect of “let’s be sure you are okay to drive” or “let’s make sure you are legal to drive”. He directed the accused to come back to the police vehicle with him to take the approved screening device (ASD). The officer and the accused walked the short distance to the police vehicle. At the police vehicle, the officer asked the accused if he had anything that he should not have. The accused held his jacket open briefly and the officer saw nothing.

He touched the jacket pocket area and felt nothing and then did a quick pat-down search over the accused’s clothes after which he seated the accused in the back seat of the police car and closed the door. The officer then seated himself in the front seat of the police vehicle. Thereafter the two conversed through the open door in the silent patrolman. [ 5 ] The officer asked the accused when he had his last drink, to which the accused replied “about five minutes ago”. At 1:39 a.m., the officer read the standard ASD demand.

He immediately explained however, that they should wait about 10 minutes before taking the breath sample to ensure mouth alcohol had dissipated and it did not lead to a false result. At 1:49 a.m., the officer asked the accused to provide a sample in the ASD. Two inadequate samples were provided. At 1:51 a.m. a third and adequate sample was provided. It registered a fail. [ 6 ] Following the failure of the ASD test, the officer advised the accused that he was under arrest and advised him of his Charter rights. The officer then asked the accused to step out of the vehicle.

The officer performed a more thorough search of the accused. Again, he found nothing. He returned the accused to the back seat of the police vehicle. At this time the accused was not cuffed. [ 7 ] Crown counsel asked the officer why he placed the accused in the back seat of the police cruiser, and performed the ASD test there. The officer indicated this was his normal procedure and it was done for officer safety. He testified he was conducting an investigation.

Further, for public safety, he indicated that he wanted to ensure that the accused could not drive away. [ 8 ] The officer went on to testify about taking the accused to Assiniboia detachment, obtaining samples in the Intoxilyzer, issuance and service of the Certificate of Analyses, etc. However, I need not detail that evidence as it is not germane to this decision on the Charter voir dire . [ 9 ] Under cross-examination, the officer stated that Limerick is about 18km west of Assiniboia. The area is covered by Assiniboia detachment. On that night, he and another officer were both in the Limerick area.

However, each was in their own vehicle. [ 10 ] He testified that when he stopped the accused’s vehicle, he ran the plate on the in-car computer. He ascertained the accused was the registered owner. The stop itself was quite uneventful. The accused produced his photo driver’s licence. [ 11 ] The officer testified under cross-examination that he had an ASD machine with him. For all ASD tests, he takes the accused to the police cruiser. He said he was trained to do that. He agreed that given the time of year and the temperature that evening, the ASD

would have functioned outside of the police vehicle. He agreed that the accused was in the police cruiser in the seat behind the driver’s seat and further, that the accused was locked in the police vehicle. That is, the back doors could not be opened from the inside. The only way for the accused to exit the police vehicle would be if the officer got out first and opened the door from the outside. Again, he stated that this was his standard practice and policy. [ 12 ] He was asked about the search prior to the ASD. He indicated this was a very cursory pat- down search.

If an accused failed the ASD test, then he would normally do a more thorough search incident to arrest. He stated the cursory pat-down search involves only touching the pockets. The officer agreed with defence counsel that some other officers perform the ASD when the accused is sitting in the back seat and has his feet on the ground. He agreed some other officers perform the ASD at the person’s car window. The officer agreed with defence counsel that he does the pat-down search on every individual before placing him in the back of the police cruiser for the ASD.

The Argument [ 13 ] As mentioned above, both counsel made extensive argument. They agreed this was an investigative detention. Defence counsel argued that the accused’s rights to be free from arbitrary detention under s. 9 of the Charter and to be free from unreasonable search and seizure under s. 8 had been infringed. In making these arguments, he did not say that the officer singled out his client for any kind of special abusive or extreme measures. To the contrary, both counsel agreed that both the police officer and the accused were quite cordial and cooperative with one another.

The defence argument is that the standard practice utilized by the officer in this case, of locking the accused in the back of the police car, and performing a pat-down search immediately prior to doing that contravened the Charter rights. The defence argument is that the officer had no reasonable belief that the accused was any kind of threat or danger to him, so a less restrictive detention ought to have been utilized, and a pat-down search was inappropriate. The defence argument was very substantially based upon the common law principles. Counsel extensively referred to R v Mann [1] and R v Aucoin [2] .

For the most part, defence counsel dealt with these two Charter sections together, and argued that there could be no valid detention in the back of the police vehicle and thus no valid pat- down search could occur. However, I interpret his argument to also include that even if the detention is justified, the pat-down search was unreasonable and infringed the s. 8 right. In this respect, he maintains on the basis of Mann and Aucoin that, this pat-down search was done solely on the basis of the standard procedure, and not because the officer had any legitimate concern for officer safety.

He says that without any concern for the officer’s personal safety or risk, no pat-down search is justified and will be contrary to s. 8. [ 14 ] Mr. Hendrickson, for the Crown, argued that the accused was lawfully detained from the time of the vehicle stop and when the officer indicated he would make an ASD demand. The detention was lawful and not qualitatively different whether the accused was held at his vehicle, outside his vehicle, or in the police vehicle. Because the detention was lawful, there was no violation of s. 9.

He argued that it is impractical, particularly in the harsh weather frequently present in the prairies, that a police officer should be required to stand outside an accused’s vehicle for a lengthy time conducting an ASD test or investigation. As a result, the officer did nothing improper by taking the accused to the police cruiser. Further, the pat-down search was minimally intrusive and necessary for officer safety. As a result, there is no infringement of the accused’s s. 8 right.

Issues [ 15 ] The following issues arise for determination: 1) Did the officer ’s use of general procedure, and a placement of the accused in the back seat of the police cruiser, result in an arbitrary detention of the accused, contrary to s. 9 of the Charter?

Was the police officer legally authorized to detain the accused in the back seat of the police vehicle? 2) Did the pat-down search of the accused immediately prior to his placement in the back seat of the police vehicle result in an unlawful search and seizure and infringe his rights under s. 8 of the Charter? 3) If either of the above-mentioned Charter rights have been infringed, a Grant analysis must be done. Utilizing the Grant analysis, should the evidence be excluded or admitted?

Analysis 1) Did the officer ’s use of general procedure, and a placement of the accused in the back seat of the police cruiser, result in an arbitrary detention of the accused, contrary to s. 9 of the Charter? Was the police officer legally authorized to detain the accused in the back seat of the police vehicle? [ 16 ] In R v Grant [3] at para 54 the Court stated:

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ( Mann at para. 20 ), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. Other cases establish that the law authorising the detention may be the result of the common law, or may be the result of a statute of Parliament or the Legislature. [ 17 ] In this case, defence counsel argued extensively on the basis of Aucoin that there was no right at common law to detain this accused.

Further, that less restrictive measures were available and because there was no right to detain, this detention was unlawful. [ 18 ] But in my view, the Aucoin decision is distinguishable from this case. I would adopt the reasoning expressed by Madam Justice Ross in the case of R v Fournier [4] at para 49 : [49] The Supreme Court specifically commented in Aucoin that it was not an investigative detention case. The pat-down search and detention in the police vehicle occurred after the investigation was complete.

The appellant was to be detained in the police vehicle while the officer wrote up two tickets for “ relatively minor motor vehicle infractions ” . In this context, being searched and placed in the police vehicle “ altered the nature and extent of the appellant ’ s detention in a fairly dramatic way ” . . . . [50] In contrast, in the Provincial Court ASD cases there is an ongoing investigative detention.

The individuals involved are lawfully detained until the completion of the ASD test, whether they are detained in their own vehicles (with potentially their car keys removed for safety), or outside on the side of the road (with potential issues regarding safety, privacy or comfort), or in the back of a police vehicle.

I accept that the latter option, particularly where it is preceded by a pat-down search, does involve an increased restriction on liberty and privacy interests, but in the context I would not describe the difference as fundamental or dramatic. [ 19 ] Following the initial arguments at the conclusion of the voir dire , I raised with counsel the significance of the words “and, if necessary, to accompany the peace officer for that purpose.” These words appear at the end of s. 254(2). We arranged for further submissions.

Defence counsel emphasized “if necessary”and argued that lesser restrictions were available and an accompaniment of the officer was not necessary. As a result, he argued these words have no particular significance or relevance to this case. However, below, I look briefly at the historical development of the breathalyzer and ASD provisions, and give a much broader

interpretation of these words, which leads directly to my determination that there is no breach of the s.9 right. [ 20 ] In my view, by the wording of s. 254(2), Parliament has given a specific and statutory authorization for the detention of the accused person until the ASD test is completed. As mentioned above in the quote from Grant , a lawfully authorized detention is not arbitrary unless the law authorizing the detention is itself arbitrary. In this case, there has been no argument that the statutory law that I refer to is arbitrary and contrary to s. 9. Section 254(2) states as follows: Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol . . . in their body and that the person has, within the preceding three hours, operated a motor vehicle . . ., the peace officer may, by demand, require the person . . . . . . (

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 an

approved screening device and, if necessary, to accompany the peace officer for that purpose . [emphasis added] [ 21 ] In my view, on a plain and ordinary

interpretation of these words, the peace officer is given the right to detain the individual for the ASD test, and that individual is required to submit to that detention and accompany that officer for the provision of the test. This

interpretation of these words is made more apparent or real by a brief examination of the history of these kind of legislative provisions. The Criminal Law Amendment Act [5] ,

Chapter 38, enacted s. 223 and gave the police officer the right to demand breath samples in the first breathalyzer machines.

Section 223(1) read as follows: Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under s. 222, he may, by demand made to that person forthwith or so soon as practicable, require him to provide then or as soon thereafter as practicable a sample of his breath suitable to enable an analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such a sample to be taken . [emphasis added] In 1968, when this provision was enacted, it was pre- Charter .

There were no alert or ASD machines at this time. There were no machines in the police vehicles. An individual had to be taken to a police station where he would supply breath samples in a breathalyzer. At this stage, the officer would not know whether any offence had been committed. He was detaining the accused to investigate whether a charge of driving over the limit was warranted. In today’s parlance, he was placing the accused in investigative detention. Given this backdrop, it would seem to me that the closing words of this

section were intended to allow the police officer to detain the accused, and to require the accused to accompany that police officer to the police station to supply breath samples. [ 22 ] It would appear that with each re-enactment of the subsection requiring breath tests in the breathalyzer these words “and to accompany the peace officer for the purpose of enabling such a sample to be taken” are attached to and appear at the end of the subsection. [ 23 ] The Criminal Law Amendment Act [6] enacted s. 234.1, the first roadside testing provision, as follows: Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved roadside screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken . [emphasis added] In each subsequent re-enactment of these provisions respecting the alert or ASD machines, the same concluding words appear at the end of the subsection. [ 24 ] In a textbook Sullivan on the Construction of Statutes , 5 th ed., p 214 - 215, the author states: The presumption of consistent expression .

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once a particular way of expressing a meaning has been adopted, it is used each time that meaning is intended. Given this practice, it makes sense to infer that where a different form of expression is used, a different meaning is intended.

The presumption of consistent expression applies not only within statutes but across statutes as well, especially statutes or provisions dealing with the same subject matter. [ 25 ] As a result of the above, I interpret s. 254(2) to mean and conclude that its concluding words authorize a police officer to detain an individual for the ASD test, and require the individual to accompany that police officer to provide the breath sample. If the individual could be required to ride in a police car and accompany a police officer all the way to a detachment or police office for supplying a breath sample, surely this

section allows the police officer to detain the individual within the back of the police car for the purpose of administering the test. As a result, I would conclude that the detention of this accused was legislatively authorized by the words of s. 254(2). Because the detention was legislatively authorized, and there is no challenge to the

section itself, the detention is not arbitrary and there is no breach of the accused’s s. 9 right.

2) Did the pat-down search of the accused immediately prior to his placement in the back seat of the police vehicle result in an unlawful search and seizure and infringe his rights under s. 8 of the Charter? [ 26 ] I begin this

section of the judgment by noting that in part, defence counsel argued that because the detention was unlawful, there could be no lawful search pursuant to the detention. I certainly agree with defence counsel that if the detention was unlawful, there could be no lawful search following that unlawful detention. However, as I have determined that the detention is lawful, the subsequent search is not automatically unlawful.

The question becomes: Given that this accused was lawfully detained for an ASD test, was the officer entitled to perform a pat-down search before placing him in the police vehicle, or was that search unlawful and contrary to s. 8 of the Charter . [ 27 ] I begin by looking at the procedure followed by the police officer, and making some specific findings regarding that procedure. The officer testified that he did a very cursory pat-down search, and he did so for officer safety. He said he was conducting an investigation.

He said that he detained the accused in the back of the police vehicle to give him some control and prevent him from driving away. [ 28 ] The police officer did not say that he felt particularly threatened or in danger as a result of this accused. There is nothing in the evidence that would allow any objective observer to say that this police officer reasonably felt or concluded that he was under some threat or danger. Defence counsel seized upon this and said that the pat-down search was unlawful.

Further, that the police officer must perceive some danger or threat in order to perform a pat-down search for officer safety. He said this search was not for officer safety but was a blind and ritualistic following of standard procedure. [ 29 ] In my view, defence counsel’s analysis and argument on this point is too black and white or simplistic in nature. It seems to me that in looking at workplace safety practices and procedures, such practices or procedures could be divided into two broad categories.

Firstly, general safe workplace practices and procedures, that are designed to be used everyday in the workplace, to maintain a safe work environment. These procedures are used everyday, and are used when there is no imminent threat or danger. The second category involves safety practices or protocols that are utilized when a worker is confronted with a potential dangerous situation, or emergent situation. These practices and procedures are designed to correct a budding emergent or dangerous situation, and retain or restore a safe work environment.

A proponent of specific safety procedures and protocols would make two points regarding defence counsel’s criticism of the pat-down search. Firstly, he would say that the criticism of the pat-down search, when the officer does not perceive any real physical harm or danger, is ill founded. The pat-down search prior to putting someone in the vehicle is a general workplace safety practice designed to maintain a safe workplace. It should be used regularly, not when there is a perception of danger.

In fact, if the danger arises after the individual is already in the back seat of the police car, it is then too late to do the pat-down search. Secondly, and perhaps more importantly, the fact that the officer has not perceived and testified about a specific threat or danger does not mean that this procedure is not there for officer safety. To the contrary, this is “a category 1 safety procedure” designed to maintain safety. (In my view, his Honour Judge Fraser in R v Parkar [7] and Madam Justice Ross in the Fournier case, performed a similar analysis to this one, and reached a similar conclusion.

They concluded that it was the totality of the circumstances surrounding the detention that created the risk of the unknown. This risk of the unknown justified a minimally intrusive pat-down search. Further, that an actual threat or danger was not required for an officer to utilize a safe procedure like a pat-down search.) [ 30 ] I also do not share the same distaste for standard practices and procedures as does defence counsel. To the contrary, in my view the experienced police officer should follow the safe and established practices and procedures as much as is reasonably possible.

The established practice and procedure should be examined and critiqued on the basis of fairness, reasonableness, intrusiveness, and other like factors. The standard practice and procedure should not be critiqued simply because it is a standard practice or procedure. [ 31 ] I also note, as have a number of the judicial decisions, that time is of the essence when the ASD demand is made. Clearly the demand must be made forthwith, and a sample must be provided forthwith or as soon as reasonably practicable. This means that the investigating officer does not have much time to investigate whom he is dealing with.

Rather, he is required to investigate the alleged incident of impaired driving by receiving a breath sample as soon as is reasonably practicable. [ 32 ] Both counsel reviewed a lot of the case law, and referred me to many cases that supported their various arguments. I am

particularly swayed by the decisions of Parkar and R v Fournier [8] . [ 33 ] In the Fournier decision, Mr. Justice Ross notes that in the Mann case, the Supreme Court of Canada determined the police had a common law power to detain an individual for investigative detention and where reasonably necessary to conduct a pat-down search for officer safety. The problem in the Mann case was not that the police conducted a pat-down search, per se. Rather, it was that the police required the individual to empty out his pockets and in so doing conducted a more thorough or intrusive search than the mere pat-down search.

In so doing, the police exceeded the authority to conduct the pat-down search and their search became unlawful. [ 34 ] In the Fournier case, in paragraphs 19 and following, Madam Justice Ross specifically dealt with the Aucoin decision.

At paragraph 25, the Court stated as follows: The majority noted that, as the detention was unlawful, it was not necessary to consider “whether a police officer may always - that is, even in the absence of any specific information of a potential threat to the officer or the detainee - conduct a pat-down search as a prelude to lawfully securing the detainee in the rear of a police cruiser.” Further, “had the decision to secure the appellant in the cruiser been lawful”, the majority decision “should not be taken as endorsing the ... view that the police required “reasonable grounds” to believe officer or detainee safety was at risk in order to pat him down” (at para 44, footnote 3). [ 35 ] I specifically adopt this analysis.

In my view the Supreme Court of Canada has not yet determined whether a pat-down search is authorized in all cases before an individual is placed in the back of a police vehicle. [ 36 ] When I consider that time is of the essence and the police officer must take the sample quite quickly; that the police officer has a time limited opportunity to investigate and determine what is necessary to preserve officer safety; that the officer utilized a cursory pat-down search for officer safety; that the pat-down search is minimally intrusive, I come to the conclusion that the pat-down search prior to placing the individual in the police vehicle was reasonable.

As a result, in my view, there was no unreasonable search and seizure conducted here, and no breach of the accused’s s. 8 Charter rights. [ 37 ] I hasten to point out however, that I am only saying that the limited pat-down search was reasonable in the course of the investigative detention to obtain the breath sample in the approved screening device. In my view, a more rigorous or intrusive search or a search to obtain evidence for other criminal charges would not be justified.

To the contrary, such a search would be the same situation as the Supreme Court encountered in Mann , and His Honour Judge Harradence dealt with in R v Primeau [9] . In both of those cases the Court felt the search was unlawful and went beyond what was permitted. The evidence was excluded. The Grant Analysis [ 38 ] As I have concluded there is no Charter breach, I need not do a Grant analysis. Even if I were to find a breach, however, I would be very reluctant to exclude the evidence. The officer displayed no ill will or bad faith. His quick and cursory pat-down search was not intrusive or demeaning.

It yielded no evidence for this charge or any other charge. In my view, if I were to exclude this evidence, it would be punishing the police and the state because I didn’t like “their standard procedure” and that would be inappropriate. Conclusion [ 39 ] In all of the circumstances I have concluded there was no breach of this accused’s Charter rights. Accordingly, all of the evidence admitted in the Charter voir dire will now be admitted in the trial proper. [ 40 ] I express my thanks to both counsel for their very thorough arguments in a very interesting case.

Dated this 8 th day of March 2018, at Assiniboia, Saskatchewan. ___________________ D. Kovatch, J [1] 2004 SCC 52 , 185 CCC (3d) 308 [ Mann ] [2] 2012 SCC 66 , [2012] 3 SCR 408 [ Aucoin ] [3] 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] [4] 2017 ABQB 533 [ Fournier ] [5] SC 1968-69 [6] SC 1974 - 75 - 76, Ch. 93 [7] 2016 ABPC 169 [8] 2017 ABQB 533 [ Fournier ] [9] 2016 SKPC 134