Her Majesty the Queen - v. -, 2013 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 076 Date: May 3, 2013 Information: 24429072 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kyle Frank Dillabough Appearing: Brenda Korchinsky For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE D.J. KAISER , J [ 1 ] Kyle Frank Dillabough is charged that he did on October 8, 2011, at Wilkie, Saskatchewan, commit the offence of driving a motor vehicle while having a blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(1) (

b) of the Criminal Code and the offence of impaired driving contrary to section 253(1)(

a) of the Criminal Code . Through counsel he has alleged breaches of sections 9 (arbitrary detention) and 8 (unreasonable search and seizure) of the Charter of Rights and Freedoms , and seeks an order under subsection 24(2) of the Charter by way of exclusion of the Certificate of Analyses. This application was heard by way of voir dire . [ 2 ] The Crown also sought admission of certain utterances against interest made by the accused to Cst. Adam Olson, the

[ 2 ] The Crown also sought admission of certain utterances against interest made by the accused to Cst. Adam Olson, the investigating officer, following the point in time when the demand for breath samples was made. Hence a voir dire was necessary in order to address the question of voluntariness of the utterances. No application was made by the defence with respect to subsection 10(

b) of the Charter . It would appear that this is because defence counsel takes the view that whatever utterances were made have little or no probative value in respect of any matter in issue in the trial. In my view, that position is well taken. The utterances made by the accused might be mildly probative with respect to the over 80 milligrams count, but at present, it is difficult to see how they could be probative in respect of the impaired driving count. The over 80 milligrams count will succeed or fail upon determination of the admissibility of the certificate.

In my view, there is a further reason why no application was made for alleged violation of the accused’s rights under subsection 10(

b) of the Charter . Clearly the utterances made by the accused arose spontaneously from within him. They were not in any way elicited from the accused by the police. I find that the utterances made by the accused to Cst. Olson were voluntary within the meaning of the law and that they were not obtained through any violation of a Charter right of the accused. They are accordingly admissible in the trial. THE FACTS FOR PURPOSES OF THE VOIR DIRE [ 3 ] At approximately 2:45 a.m. on Saturday, October 8, 2011, Cst.

Adam Olson of the RCMP, while in uniform and operating a fully marked police car with emergency lights, was patrolling outside and around the Wilkie Homestead Inn and Bar in the Town of Wilkie, Saskatchewan. This was around the usual closing time for this bar on weekends. It appears that the bar was in fact closing for the night, in that Cst. Olson had just finished speaking with some individuals who were leaving the bar and were walking home with an open case of liquor.

He testified that “I was still in the area and as I was leaving - I had my driver’s window rolled down a little bit - and I heard gravel spinning on the road and as I looked up I saw a greyish coloured GMC truck was turning onto the street that I was driving on which was 3 rd Avenue.” He then indicated that this was in fact 3 rd Avenue West, in that they were just west of Main Street.

He then continued as follows: “and when I saw the truck as it was turning the corner it was turning near the pedestrians that I had just spoken to regarding the open liquor and the truck accelerated hard around the corner like I said kicking up gravel and it drove immediately past me on my driver’s side as we passed each other on 3 rd Avenue. As I turned around - or - activated my emergency lights to stop the vehicle and at that time I made a U-turn to follow the truck and it again turned left onto Main Street and then a quick right into the parking lot of the bar.

As it turned into the parking lot the rear passenger tire struck the curb. I proceeded to do a traffic stop in the parking lot of the bar.” He stated, and I accept that the roads were paved but had some loose gravel on them in that there was construction in the general area. He further testified “After the vehicle struck the curb, it continued to pull into the parking lot and it stopped abruptly sharply in front of the door I guess to the bar. It would have been just left of the entrance I guess.” [ 4 ] The following exchange then occurred between Crown counsel and the witness: Q.

From the time when you put those flashing lights on how far do you go in terms of following this vehicle? A. I believe he would have been maybe half a block before he turned into the parking lot. Q. So if you had to kind of guesstimate ( sic) how long your lights were on, kind of paint me a picture... A. Approximately 10 to 20 seconds. Q. What happens next? A. At that time his vehicle was put into park. I exited my police car approached the driver’s side window.

At that time I noticed that there was an open can of Molson Canadian beer in the centre cup holder as well as an open I believe 30 pack of cans on the passenger side floor. There was one occupant who was the driver. I recognized him as Kyle Dillabough... [ 5 ] Having elicited the basic facts leading to the initial detention, Crown counsel sought to have the witness state his reasons for detaining the accused. The following exchanges took place. Q. Why did you decide to put on your emergency lights? A. Based on his driving.

The way he came around the corner, the hard acceleration and sped past the pedestrians as he went by me. I wasn’t sure that that was exactly safe to be - the way he turned wasn’t safe in my mind around the pedestrians walking in the road there towards the south side of the road. Q. ....you’re indicating two reasons, then? A. Initially that was why I was going to pull him over and then after he struck the curb I was starting to in my mind I was believing that

he might have been impaired at that time. I wanted to check his driver fitness or sobriety at that time. ........ Q. And so you mentioned the way he was driving - if you could just enunciate all of the - like you said you wanted to check driver fitness or sobriety? A. Correct. Q. So what are all of the points that you put into that? A.

Well, to the effect that his ability to operate a motor vehicle would have been impaired by alcohol or a drug or possibly a medical condition at that time - and initially what had alerted me was that he had kicked up the gravel around the pedestrians which in my mind isn’t something that somebody normally does when driving and then they struck the curb entering a parking lot it was in my mind again irregular for somebody to do that and that’s what had initially started me towards thinking that possibly he might have been impaired - and just given the time of day and the proximity to the bar it’s possible that he might have been consuming alcohol as well. [ 6 ] This is an appropriate time to note the officer’s comment that the pedestrians were on the road but on the south portion of it.

Given his evidence that the events began in an area west of Main Street, and that the accused subsequently turned left onto Main Street, the accused would have been eastbound on 3 rd Avenue West. Therefore his lane of travel on 3 rd Avenue West would have been on the south side of the avenue, and hence in the vicinity of the pedestrians. [ 7 ] Cross-examination revealed that the officer did not see the gravel being kicked up, but heard it skipping on the roadway surface.

As well, to the best of his knowledge, the pedestrians that the officer had just dealt with did not have to take evasive action in order to avoid being run down. [ 8 ] The officer approached the truck, recognized the driver as the present accused, and observed what he referred to as the alcohol within the driver’s reach. He decided to engage the accused in conversation so that he could, as he put it, “assess the driver’s mind set.” Cst. Olson asked the driver what he was doing. The driver said that he was there to pick up his girlfriend from work, and it appears that he gave her name.

The officer testified that the accused slurred his words as he gave him her name. The officer testified that he asked the accused how much he had to drink that night and that the accused replied “seven beers”. At that time, while the accused was still within the vehicle, Cst. Olson advised the accused that he was under arrest for impaired driving. He told the accused that he would be allowed to call a lawyer. [ 9 ] He asked the accused to step out of the vehicle, and the accused complied.

He had the accused turn around and face his truck so that he could be handcuffed and that the officer could conduct a quick pat down search. The accused kept turning around to talk to the officer. The officer told him several times to keep facing forward, yet the accused persisted in turning around to talk to the officer. The officer made the point in cross-examination that he could hear the accused quite adequately whether the accused was facing him or faced away from him. Cst. Olson felt that the accused may have been having trouble following the officer’s directions.

The accused’s words were in the nature of an apology. He then placed the accused in the back seat of the police vehicle. [ 10 ] The officer then took his camera and photographed the vehicle showing the beer can and beer box, and also where the vehicle was relative to the door of the bar. His reasons for doing this related to a previous incident, where a group of people had assembled in this area, and the police had found it necessary to withdraw. There was nothing to suggest that this accused had any involvement in that matter.

The photographs also show that the vehicle was stopped immediately adjacent to the entrance door of the bar. [ 11 ] The officer then returned to the police vehicle, confirmed the availability of Cpl. Joy Prince to act as breath technician for this matter. At 2:56 a.m., he read him his right to counsel, the standard police warning, and then the demand for breath samples to be analysed in an approved instrument. [ 12 ] After eliciting from the officer the fact of the breath demand, Crown counsel asked Cst. Olson to enunciate everything that went into the reasonable probable grounds.

He answered saying, “To my mind, initially when he accelerated hard and fast around the corner kicking up gravel near the pedestrians and then striking the curb as he pulled into the parking lot, and then again the alcohol containers that were located in the vehicle, the can, the open can of beer located in the cup holder for the driver, the slurred speech when I was speaking with him regarding what he was doing that evening, and also I recall that he was not actually zoned out, but he was - his responses were kind of delayed when I was speaking with him, and then afterwards, when I had spoken to him, and asked him how much

he had to drink that night and he responded seven beer.” [13] Elsewhere in the evidence, it had come out that Cst. Olson did not seize the beer can or box and did not look into them, todetermine how much or if any beer was located with the can or the box. [14] In cross-examination, it came out that the officer did not observe glossy eyes on the accused, and did not detect an odour ofalcohol on the accused’s breath before making the demand. Further, he had not noted any fine co-ordination or other co-ordinationissues, except for that already referred to such as kicking up gravel, and hitting the curb.

He had not asked the accused to produce adriver’s licence and registration because he knew who the accused was. The only specific example of slurring that the officer couldidentify was in respect of the letter “s” in his girlfriend’s last name. The matter of the delayed responses was not contained in theofficer’s notes or occurrence report. The officer confirmed that the delay was a separate matter from the slurring. [15] Cst. Olson took Mr. Dillabough to the Wilkie Detachment. Cpl.

Prince arrived and samples were taken, which resulted in thecurrent charges. [16] The accused argues that he was arbitrarily detained contrary to

section 9 of the Charter of Rights and Freedoms and that hewas subjected to an unlawful search and seizure contrary to

section 8. He seeks an order under section 24(2) excluding the breath testresults from the evidence. ANALYSIS 1. Did the initial stop violate the accused’s right to be free from arbitrary detention as guaranteed by

section 9 of the Charter? [17] As I understand it, defence counsel submits that Saskatchewan through both our legislation and our case law has not gonedown the road of other provinces by authorizing random stops and searches, pursuant to R. v. Ladouceur, (SCC),[1990] 1 S.C.R. 1257 and R. v. Wilson, (SCC), [1990] 1 S.C.R. 1291. I do not agree. First of all, I feel that is unfair tothe other provinces to suggest that they have gone down that road. Of the cases in Canada that I am familiar with, the Saskatchewancase of R. v. Duncanson (1991), (SK CA), 93 Sask.

R. 193 (C.A.) goes further in that direction than any other. Secondly, subsection 209.1(1) of the present Traffic Safety Act, is not materially different than the similar legislation in most of the otherprovinces. That subsection reads: 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. [18] Further, the present subsection is identical to subsection 40(8) of The Highway Traffic Act being Saskatchewan’s previousgoverning subsection on this subject, and it is not materially different from the Ontario legislation that the Supreme Court of Canadadealt with in cases such as R. v. Ladouceur. [19] The law in this area was relatively recently reviewed by the Saskatchewan Court of Appeal in R. v. Houben, 2006 SKCA 129,289 Sask. R. 118.

In that case Madam Justice Jackson wrote at paragraphs 64 to 68: [64] From this Court's recent review of the law in Ladouceur (Sask.) and Schaeffer and the above review, I conclude that the law may beexpressed in this manner. Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The HighwayTraffic Act any stop effected by the officer is a justifiable infringement of the individual's rights under s. 1 of the Charter. [65] While the police officer acting under s. 40(8) need not have "reasonable grounds to detain," it must be the police officer's intention

to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin.

The police officer need not sayexpressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, but thetrier of fact must be able to conclude on the basis of the evidence that the police officer was checking for "sobriety, licences, ownership,insurance and the mechanical fitness of cars." In sum, s. 40(8) cannot be used to create a general power of detention for investigativepurposes. [66] The Supreme Court in Ladouceur and Mellenthin did not justify the equivalent of s. 40(8) as a reasonable limit under s. 1 of theCharter on the basis of creating a general power of detention.

We have not been presented with any reason to expand the power of policestops beyond that articulated in those cases. [67] If a police officer has a suspicion that a driver is involved in criminal activity, unrelated to traffic enforcement, such that he or shewould like to stop a motor vehicle, the suspicion must meet the test in Mann. [Footnotes omitted] [20] It would seem that in Houben, the Court of Appeal sought to distance itself from its own decision in R. v. Duncanson (1991), (SK CA), 93 Sask. R. 193 (C.A.).

In Duncanson the Court wrote at paragraph 21: The fact s. 40(8) was enacted following the decision in Hufsky is strongly indicative of an intention in the legislature to empower thepolice in this province (as empowered in Ontario) with the authority to stop a vehicle for any purpose associated with lawful execution oftheir duties and responsibilities generally, and to do so without the need even for suspicion of wrongdoing of any kind by the driver. [21] In my view, R. v.

Ladouceur did not give authority to police officers to stop vehicles for any and all purposes associated withlawful execution of their duties without the need for suspicion of wrongdoing, but it did give that power to police officers if the purposeof the stop was for traffic safety purposes as defined in Ladouceur and confirmed in Mellenthin.

I see these cases as authorizing randomstops for those limited purposes, and that this is exactly what Madame Justice Jackson was saying in Houben. [22] In Ladouceur the stated constitutional questions, and the answers given by the majority of the Court to those questions were: 1. Is

section 189a(1) of The Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. 2 of The Highway Traffic Amendment Act, 1981(No.3), S.O. 1981, c. 72, inconsistent with ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms to the extent that it authorizesthe random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds or other articulable cause tobelieve that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. programme? (Italics added.) Answer:

Section 189a(1) of The Highway Traffic Act, R.S.O. 1980, c. 198 as amended by s. 2 of The Highway Traffic Amendment Act,1981 (No. 3), S.O. 1981, c. 72, is not inconsistent with ss. 7 or 8 of the Canadian Charter of Rights and Freedoms but is inconsistent withs. 9. 2. If the answer to question 1 lies in the affirmative, can s. 189a(1) of The Highway Traffic Act be justified pursuant to s. 1 of theCharter? Answer:

Section 189a(1) of The Highway Traffic Act can be justified pursuant to s. 1 of the Charter. [23] It is clear that the majority held that random stopping of motor vehicles without reasonable grounds or other articulable causeto believe that an offence has been committed can be lawful, though a full reading of the case clearly shows that this will only be so if thestopping is for traffic safety purposes. [24] Mr. Justice Cory, writing for the majority, first found that such stopping does constitute a breach of

section 9 of the Charter,in that it is both a detention and arbitrary. He then went on to examine the

section 1 question which he delineated in the following terms: The crux of the issue is whether the truly random routine check can be "reasonably and demonstrably justified in a free and democraticsociety". (S.C.R. p. 1278). [25] He reviewed statistics on highway deaths, injuries and property damage and other statistics which connected same to impaired

drivers and drivers whose licences were suspended. At S.C.R. page 1280, he wrote: The mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver are the three primary and specific areas of concern. Each of the three represents a significant component of the aggregate accident figures. These factors, which are prerequisites to the safe operation of a motor vehicle, can be readily identified and, if they can be controlled, then accidents causing death and injury will be reduced.

It is therefore a very legitimate goal to strive by legislation to control and eradicate those dangerous factors thereby reducing the terrible toll of highway accidents. [ 26 ] With respect to the means of achieving these “legitimate goals”, he wrote at S.C.R. page 1284: To begin with, it has been observed that not only is the stopping of vehicles rationally connected to highway safety, it is the sole method of checking a driver's licence and insurance, or the mechanical fitness of a vehicle or whether the driver is impaired.

It should be remembered that when penalties are imposed for driving offences, the suspension of the driver's licence often plays a significant role. In addition, with the suspension of the driver's right to drive, society remains protected when the court decides in appropriate cases to impose a lighter jail term to the benefit of the offender. In order for licence suspensions to be effective as a means of punishment, they must be enforceable. To permit those whose licence is suspended to drive creates both a danger to society and fosters a contempt for the law by the ease of infringement.

There must be a real element of risk of detection of driving by unlicenced drivers for the suspension of a licence to be an effective remedy. Random stops supply the only effective deterrent. [ 27 ] On the subject of random stops outside of an organized program, he wrote at S.C.R. page 1285: To recognize the validity of the random routine check is to recognize reality. In rural areas it will be an impossibility to establish an effective organized program. Yet the driving offences in these areas lead to consequences just as tragic as those that arise in the largest urban centres.

Even the large municipal police force will, due to fiscal constraints and shortages of personnel, have difficulty establishing an organized program that would constitute a real deterrent. [ 28 ] Mr. Justice Cory’s comments as to rural areas are particularly appropriate to the present case. [ 29 ] The following passage, found at S.C.R. page 1288, is frequently quoted, and in my view, occasionally misinterpreted: Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective.

The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences.

Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter . (Italics added.) [ 30 ] The misinterpretations that sometimes arise are in respect of the last three sentences. In my view, “driving offences” in the third last sentence includes, inter alia , “impaired driving” and “driving while over 80 milligrams”.

The second last sentence means that such things as a search of the vehicle or of the person cannot be conducted, following a stop made for traffic safety reasons, without reasonable and probable grounds to believe that an offence has been committed. The word “unlawful”, found in the last sentence, in this context, simply speaks to the situation of such things as an unlawful search or a stopping for other than traffic safety purposes. It is not intended to modify or limit in anyway the power to stop a vehicle upon an entirely random basis for traffic safety purposes. Any other

interpretation would make the italicized sentences meaningless. If following such a traffic safety stop the officers makes observations of the driver that provide reasonable and probable grounds to believe that an offence has been or is being committed, the officer may then take such further steps as are authorized by law. Obviously, such further steps might include a demand for samples of breath. [ 31 ] Defence counsel filed with the Court a document that he called a Brief of Law. It bears the style of cause in this matter, but in

all other respects is identical to materials that the same counsel has filed with me in other matters. Nothing in the text is specificallyreferable to this matter. Twelve cases are cited and attached. They are the same twelve cases cited and attached in the other briefs. Allof these cases end favourably for the defence. They are for the most part fact driven. Obviously, other cases had the opposite result. None of these are cited or referred to.

I remind counsel of the ethical duty to draw to the Court’s attention not only the cases favourableto counsel’s argument, but also those which are opposed. [32] Among the cases where the accused was found guilty based upon a conclusion that the random stop was for traffic safetypurposes is R. v. Doell (Q.) (2007), 2007 SKCA 61 , 293 Sask. R. 262; 397 W.A.C. 262; 221 C.C.C. (3d) 336; 2007 SKCA 61. Present defence counsel must be aware of this decision because he was counsel in that matter.

In Doell, two police officers stopped theaccused because they thought that he may not have been wearing his seat belt, though they were not certain that this was the case. In thecourse of speaking to the accused the police became aware of signs of impairment and demanded breath samples. The trial judge foundthat the stop was for the purpose of investigating a possible seat belt violation. A conviction was entered at trial, but overturned by thesummary conviction appeal judge. Writing for the Court of Appeal, Mr. Justice Richards, in paragraph 10, summarised the judgment ofthe

summary conviction appeal judge, as follows: The

summary conviction appeal judge considered the evidence and found nothing to indicate that Constable Ziola had a rational basisfor believing Mr. Doell was driving without a seat belt. He therefore concluded no legitimate reason had been established for the stopand that, as a result, it was arbitrary. This led him to exclude the Certificate of Analyses and to enter a verdict of acquittal. He made noreference to s. 1 of the Charter in the course of his analysis. [33] In paragraphs 14 to 16, Mr. Justice Richards wrote: [14] In my respectful opinion, the

summary conviction appeal judge misapprehended the case law relating to vehicle stops. As a result,he wrongly found a Charter violation. [15] The Charter enumerates a variety of rights and freedoms.

Section 9 deals with arbitrary detention. It states: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [16] However, the Charter also recognizes that rights and freedoms are not absolute. They may be lawfully limited in ways which arereasonable and demonstrably justifiable.

Section 1 reads as follows: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsas prescribed by law as can be demonstrably justified in a free and democratic society. [17] A Charter analysis is not complete unless s. 1 is considered.

The ultimate legality of state action frequently turns on the applicationof that provision. [34] After citing the leading cases and setting out subsection 40(8) of The Highway Traffic Act, he continued at paragraphs 20 and21, as follows: [20] I do not propose to lay out a detailed examination of those authorities because they recently have been examined in-depth by thisCourt in R. v. Houben (K.), 2006 SKCA 129 , [2007] 2 W.W.R. 195; 289 Sask. R. 118; 382 W.A.C. 118; 2006 SKCA 129.

It issufficient to note that the courts have accepted the validity of limiting the rights of drivers in the interest of promoting highway safety.Vehicle stops which are random or arbitrary have been found to be justifiable pursuant to s. 1 of the Charter so long as they areconducted for a purpose which relates to "driving a car such as checking the driver’s licence and insurance, the sobriety of the driver andthe mechanical fitness of the vehicle". See: R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, at 1287; R. v. Mellenthin,supra, at p. 624.

A stop for the purpose of checking for seat belt use falls within that rubric. [21] Contrary to the reasoning of the

summary conviction appeal judge, in the realm of traffic safety there is no requirement that a policeofficer have a "rational basis" for believing an offence has been committed before stopping a vehicle. If the reason for an arbitrary stopfalls within the scope of the matters identified in Ladouceur and Mellenthin, it can be justified pursuant to s. 1 of the Charter. The merefact that the stop is arbitrary does not determine its legality. [35] After reviewing R. v. Schaeffer (D.B.), 2005 SKCA 33 , [2005] 10 W.W.R. 54; 257 Sask. R. 219; 342 W.A.C. 219;251 D.L.R. (4th) 155; 2005 SKCA 33, Mr. Justice Richards continued in paragraph 25:

[25] In my view, the trial judge made no error in concluding that Mr. Doell had been stopped for a traffic safety purpose and, more particularly, had been stopped to determine if he was wearing a seat belt. [ 36 ] He concluded his reasons on this issue at paragraph 28 writing: [28] Thus, in light of the record as a whole, I see no reviewable error in the trial judge's conclusion that Mr. Doell was stopped for the purpose of checking seat belt use. As a result, it does not matter either that the evidence fails to establish Mr.

Doell was not wearing a seat belt or that the evidence offers an arguably thin basis for suspecting he was not wearing a seat belt. The essential point is this. The stop was made for a purpose contemplated by Ladouceur and Mellenthin and can thus be justified as a reasonable limitation of Mr. Doell's rights even if it was arbitrary. [ 37 ] In my view, the Doell case is particularly noteworthy in its clarity as to the applicability of

section 1 of the Charter in traffic safety matters. Further, it is clear that the Court of Appeal did not see the list of traffic safety concerns set out in Ladouceur and Mellenthin , that is to say proper licencing, insurance, driver sobriety and vehicle fitness, as being exhaustive of applicable traffic safety concerns. The Court viewed the matter of seat belt use as also being within the scope of applicable traffic safety concerns and hence falling under the Charter

section 1 umbrella. The concurring justices in Doell were Mr. Justice Lane and Madame Justice Jackson, the latter having authored the Court’s judgment in Houben about six months earlier. [ 38 ] I turn now to the present matter. I find that Officer Olson testified honestly and frankly throughout. He turned on the emergency lights of his vehicle because he viewed the accused’s driving as being unsafe in the circumstances. Clearly all of this developed quickly and the officer did not have time to ponder the situation. The officer was aware of the pedestrians he had just dealt with. Obviously, there could well be others. He did not go through the mental process of deciding which

section or sections of The Highway Traffic Act the accused might have violated. That however, is not a difficult issue. Unsafe driving frequently results in a charge under

section 213 of that Act which reads: 213(1) No person shall drive a vehicle on a highway without due care and attention.

(2) No person shall drive a vehicle on a highway without reasonable consideration for other persons using the highway. [ 39 ] While the evidence from Cst. Olson would seem to support a charge under either of the subsections, I took his evidence to be that it was likely that he would not have charged the accused. This is not the same thing as not believing that the accused had committed an offence.

I took his intonation in speaking of this to indicate that he did think that the accused had committed an offence, but without more, he would have exercised his discretion and not laid a charge. [ 40 ] In any event, as things unfolded, he did not have to make that decision, because when the accused turned into the hotel parking lot, the rear right wheel of his truck hit and went over the curb. The other three wheels were on the driveway into the parking lot. This suggested to Cst. Olson that the accused might be impaired and he decided to enter into an impaired driving investigation.

I am satisfied that he made that decision before the accused brought the truck to a stop beside the hotel bar door. [ 41 ] The defence asks the Court to find that the accused was detained arbitrarily. The first question is “Was the accused detained, and if so, when?” Defence counsel argues that the accused was detained as soon as Cst. Olson turned on the emergency lights. I do not think that is quite the case. Detention in this type of situation is initially psychological, and therefore detention cannot begin at a time earlier than the time that the accused knows that the emergency lights have been engaged.

It does not necessarily begin at that time. I am inclined to the view that it begins when the accused decides to submit to the legal requirement to stop his vehicle. I do not think that an accused who tries to outrun the police can be said to have been detained. Regardless, the matter of submission to the requirement to stop has no direct relevance to this case. [ 42 ] The burden of establishing detention including the time that detention begins clearly falls to the accused. The accused did not testify in this voir dire. I do know that in due course, he stopped by the bar entrance.

The officer then came up to the door of the accused’s truck and began asking him questions and the accused answered those questions. In the circumstances, the accused no doubt believed that he had no choice but to answer those questions. I am satisfied that he was detained at that moment. However, does the

evidence support an earlier detention start time? I do not know when the accused first became aware that the emergency lights wereengaged. If he was aware of the lights at the point in time when they came on, he did not comply with the legal requirement set out insubsection 209.1(3) of The Traffic Safety Act “...to immediately bring the vehicle to a safe stop.” Instead he continued to drive eastbound on 3rd Avenue for a half block, turn right onto Main Street and left into the hotel parking lot and forward some 20 to 30 feet tothe bar entrance.

I do not know if he stopped there because of the emergency lights or because he had arrived at his intendeddestination. As such, the accused has not established a detention start time prior to his actual stopping. [43] Therefore, at the beginning of the detention, Cst. Olson was detaining the accused for purposes of determining driversobriety, and this is clearly one of the traffic safety objectives identified in Ladouceur, Mellenthin and Houben. The stop was thereforejustified as a reasonable limitation of Mr. Dillabough’s

section 9 right whether or not such detention was arbitrary. [44] If I am wrong in looking at the officer’s purpose as of the time that the truck came to a stop, and instead should be looking atthe moment that the officer engaged the emergency lights, a somewhat different analysis ensues. At that time, the officer had not turnedhis mind to the possibility that the truck’s driver might be impaired. That only came a few seconds later, when the right rear tire wentover the curb. At the time the lights came on, Cst.

Olson was of the opinion that in the circumstances the truck was not being drivensafely, and I fully accept that this was the reason he engaged the lights. This was not a matter of idle curiosity or of a suspicion that thedriver might be involved in criminal activity, unrelated to traffic enforcement. No improper purpose related to race, culture, sexualorientation or the like was involved. Cst. Olson engaged the lights solely because of the way the vehicle was being driven in thecircumstances that then existed. The fact that he did not specifically turn his mind to

section 213 of The Traffic Safety Act in my viewdoes not matter. What does matter is that he saw driving that could be an offence under the Act and that he engaged the lights for thatreason. In my view this is analogous to the possible seat belt violation in Doell, and thus a stop based upon what was in the officer’smind at the moment that he engaged the lights is also justified by

section 1 of the Charter. [45] Further, even if the stop was not justified by

section 1, the fact that the officer engaged the lights because of his view that theaccused was driving in an unsafe manner constitutes reasonable grounds to detain. The officer observed conduct that could well havebeen an offence under

section 213, and under The Traffic Safety Act he has the power to stop the vehicle and charge the driver, if he sawfit. [46] The application as it pertains to

section 9 and the initial stopping of the accused is dismissed. 2. Was the accused’s right to be free from unreasonable search and seizure guaranteed by

section 8 of the Charter and theaccused’s right to be free of arbitrary detention guaranteed by

section 9 infringed because the police officer did not havereasonable grounds to demand breath samples? [47] The defence asks the Court to find that the officer did not have reasonable grounds to believe that the accused’s ability tooperate a motor vehicle was impaired by alcohol and therefore that the accused was arbitrarily detained and unreasonably searched. Theapplicable principles are well set out by Mr. Justice Caldwell of the Saskatchewan Court of Appeal in paragraphs 7 through 10 in R. v.Gunn (V.E.), 2012 SKCA 80, 399 Sask.

R. 170 (C.A.); 552 W.A.C. 170, as follows: [7] A police officer may not demand a breath sample of an individual unless the officer has "reasonable grounds to believe" theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or "over .08" within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48).

Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527,at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standardof "reasonable grounds to believe" is one of lesser probability which simply requires the reviewing court to determine whether thefactors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer's belief that theindividual had driven while impaired or "over .08" within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer's belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual's ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge'sanswer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd).

[9] When determining whether the standard of "reasonable grounds to believe" has been met, it is important to keep in mind that a policeofficer need only believe an individual's ability to drive is slightly impaired. This follows on the ratio in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff'd (SCC), [1994] 2 S.C.R. 478n, where the Ontario Court of Appeal heldthat, for the purposes of s. 253(1)(

a) of the Criminal Code, an impaired ability to operate a vehicle may be established where the Crownproves any degree of impairment from slight to great. As such, the precondition to an officer's authority to make a breath-demand maybe satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual's ability to drive is even slightlyimpaired by the consumption of alcohol (see: R. v. Bush, at para. 48). [10] Given the standard to be met, any inference useful to a police officer when attempting to satisfy it must logically tend to supporteither (

a) a belief that the individual has driven within the preceding three hours, or (

b) a belief that the individual's ability to operate avehicle is impaired or that the individual is "over .08". The fact an individual has operated a motor vehicle is, usually, readily establishedon the evidence without recourse to inferences of fact. However, an impairment assessment necessarily calls for the officer to draw oneor more inferences from his or her own observations and the surrounding circumstances.

Where the reasonableness of the officer's beliefis challenged in court, the officer must be in a position to clearly articulate sufficient observations and to point to other evidence whichwould rationally and reliably sustain the officer's belief of impairment on an objective basis. [48] Cst. Olson enunciated his grounds for the demand as previously set out, but I repeat them now for convenience.

His wordswere: “To my mind, initially when he accelerated hard and fast around the corner kicking up gravel near the pedestrians and thenstriking the curb as he pulled into the parking lot, and then again the alcohol containers that were located in the vehicle, the can, the opencan of beer located in the cup holder for the driver, the slurred speech when I was speaking with him regarding what he was doing thatevening, and also I recall that he was not actually zoned out, but he was - his responses were kind of delayed when I was speaking withhim, and then afterwards, when I had spoken to him, and asked him how much he had to drink that night and he responded seven beer.” I accept that the officer subjectively believed that the accused’s ability to operate a motor vehicle was impaired by alcohol.

The questionis whether that belief was rationally sustainable on an objective basis. [49] The first factor mentioned relates to the initial driving, being hard and fast acceleration around the corner kicking up gravelnear the pedestrians. This is some evidence of aggressive behaviour often observed among people who have been affected by thedisinhibiting effects of alcohol. People who have not been drinking sometimes drive in this way as well.

The strength of the inferencethat can be drawn from this factor alone is not at all strong, but of course must ultimately be examined within the context of the otherfactors. [50] The next factor is the striking of the curb. This is not normal driving. People driving vehicles generally access parking lotsby way of provided driveways, rather than bumping a wheel over a curb. The inference that can be drawn here is that the accused wasnot able to manoeuvre his vehicle to and successfully through the driveway because of a lack of co-ordination caused by having alcoholin his body.

Obviously, not everyone who hits a curb is impaired by alcohol. Hitting a curb can occur through a lack of skill, attentionor care. [51] Next the immediate presence of the beer can and beer box is cited. While this suggests that the accused was drinking in hisvehicle, little or nothing is actually added by demonstrating that the accused had been drinking beer, given his subsequent answer to theconstable’s question about consumption. He admitted drinking a significant amount of beer, and proving that fact in some other waydoes not add to the inferences that can be drawn from the fact of drinking.

However, the presence of a beer can in the cup holder and thebeer box is suggestive of a lack of concern and care for the usually observed proprieties. Generally members of the public are going toform a rather negative opinion of one who travels around with an open beer can in plain view in his cup holder. Therefore the presenceof the beer can and to a lesser extent the box leads to an inference of a lack of care or concern on the accused’s part and this is somethingassociated with impairment.

It is reasonable to draw some slight inference of impairment from this factor. [52] The next factor is the slurred speech. The officer had heard Mr. Dillabough speak on prior occasions, and therefore, he was ina position to compare the accused’s method of speaking when sober with that on the night in question. The officer particularly noted theslurring of the letter “s” in the accused’s girlfriend’s last name.

Slurring of speech is a good indicator of impairment and in my view asignificant inference of impairment can be drawn from it. [53] Next, the officer testified that the accused’s responses in speaking were delayed. The officer did not place this factor in hisnotes or report. I do accept that he did observe this factor. However, the fact that he did not put it in his notes or report suggests to methat he put little weight on this factor. I will do the same.

[ 54 ] Lastly, the officer asked the accused how much he had to drink that night and the accused replied “seven beer”. The officer is not certain that he used the word “tonight”. In my view nothing turns on this because of the context in which the question was asked. It is 2:45 a.m. and the accused is seated behind the wheel of a motor vehicle parked in front of the door to a bar. There is a highly visible beer can in the cup holder, and a beer box on the floor of the cab. The person asking the question is a uniformed police officer who arrived in a marked police car.

When the officer asked this question, it was obviously part of an impaired driving investigation. Any reasonable person, whether or not they were impaired, would understand that the officer is asking how much alcohol the accused had consumed in a time period that would be relevant to his impairment. The response of “seven beers” is quite meaningful.

That is quite a lot of beer and a significant common sense inference of impairment can be drawn from the quantity alone. [ 55 ] When I first heard this evidence my reaction was that the Crown’s case with respect to establishing a rationally sustainable objective basis for the officer’s belief was weak. For instance, there was no indication that the officer smelled beverage alcohol on the accused’s breath prior to coming to his conclusions. That does not mean it was not there. The circumstances were such that the officer was not with the accused in a confined space.

Even if there had been such an odour detected, that would only indicate that there was some alcohol in the accused’s body, and given the admission of consumption of seven beer, that point was already established. The officer did not observe glassy eyes. Again, they are outside in a parking lot and the accused is inside his truck. The lighting could not have been good. The fact that he did not see it does not mean it was not there. Thus this is a neutral consideration.

Further, the officer came to his conclusion before any demonstration of fine motor skills or lack thereof with the exception of the striking of the curb and the slurred speech. [ 56 ] Since hearing the evidence, I have reminded myself that one does not look at the factors on a piecemeal basis. The Court must look at the inferences to be drawn when all of the factors are taken together. I have also thought about how the reasonable person would view the matter. I imagined asking that reasonable person this question. A person consumes seven bottles of beer.

He then drives aggressively around an urban street corner in an area where there are some pedestrians on the street and kicks up gravel doing so. He drives by a police car. He turns into a parking lot and one of his rear wheels hits and goes over the curb. When he speaks he slurs his words, particularly slurring the “s” in his girlfriend’s last name. On the other hand, the officer does not have difficulty understanding what the accused is saying. His speaking responses are perhaps slightly delayed. How likely do you think it is that his ability to drive is impaired?

I expect that the reasonable person would answer, “I think that his ability to drive is probably impaired.” [ 57 ] This is a borderline case for reasonable grounds. It is close either way. This officer would have been wise to have taken more time in formulating his opinion, but I cannot say that his belief cannot be rationally sustained on an objective basis. In fact, I am of the view that it is so sustained. The sections 8 and 9 application pertaining to reasonable grounds to demand breath samples is dismissed. 3.

If there was a breach of the Charter , should the evidence be excluded? [ 58 ] As earlier indicated, I consider the reasonable grounds issue to be borderline. I recognize that the matter of the objective presence of reasonable grounds is a question of law, and hence reviewable on the standard of correctness. It may be that my conjured reasonable person and I have both drawn too great a negative inference from the accused’s admission that he consumed seven beer and that on appeal, the appellate court or courts could come to a different conclusion.

Hence, it is appropriate to do a subsection 24(2) analysis in respect of this issue. I will do the same in respect of the

section 9 argument related to initial stopping, though I do not see that matter as being at all close to the line. [ 59 ] The leading case is R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. That case makes it clear that the decision to be made is whether a reasonable person, informed of all of the relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Grant mandates a three stage analysis as follows: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. [ 60 ] Dealing first with the seriousness of the Charter infringing state conduct, I find that any Charter breach committed by Officer Olson was unintentional and was not severe. He truly believed that Mr. Dillabough’s ability to operate a motor vehicle was impaired by alcohol, and he believed that he was acting within the law.

Further, in the initial stop, he felt it was necessary to stop the accused because of safety concerns related to his driving, and he believed that he had the power to do that. [ 61 ] Next, with respect to the impact of the breach on the Charter protected interests of the accused, I will first address the detention and seizure. The accused was not detained for a long period of time, nor was he mistreated in any way. I am satisfied that he

was treated with respect throughout. After the testing was complete, Officer Olson went to some length to get Mr. Dillabough to a home where he could stay for the night. With respect to the nature of the search and seizure, the taking of breath samples is clearly seen in Grant as one of the least invasive of searches and seizures, somewhat in line with fingerprinting and plucking a hair from one’s scalp.

In my view the impact upon the accused’s Charter protected interests was not large. [ 62 ] Next, with respect to the initial stopping, again the time period was quite short, and the circumstances were not onerous. Nonetheless, anytime one is arbitrarily detained, there is an impact on personal freedom and this is not something to be treated lightly.

However, there was nothing particularly aggravating about the circumstances of the detention in this case. [ 63 ] Thirdly, in respect of society’s interest in the adjudication of the case on its merits, the Court must consider whether the truth- seeking process would be better served by admission of the evidence, or by its exclusion. Here the evidence at issue is the breath analysis as evidenced in the Certificate of Analyses. This is scientific and reliable evidence. The reliability of the evidence is not affected by any potential Charter breach.

It is essential evidence to the Crown’s case on the over 80 charge. It is unlikely that there is adequate evidence to support a conviction on the impaired driving charge. Hence the Crown’s case will be terminated by exclusion of the evidence, should that take place.

Society’s interest in the adjudication would be better served by adjudication on the merits. [ 64 ] I also take note of paragraph 111 in Grant which reads: [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 65 ] Returning then to the essential determination, that is to say, whether a reasonable person, informed of all of the relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute, I do not see the present matter as being unique in any way. This is a pretty conventional set of facts.

With respect to the matter of reasonable grounds for the demand and the ensuing detention and search and seizure, I have no difficulty concluding that admission of the evidence would not bring the administration of justice into disrepute. Therefore, even if I had found that the officer acted without objectively reasonable grounds in making the breath demand, I would not exclude the breath test results. [ 66 ] The matter of the initial detention is more difficult, in part because there is little case analysis of the issue and also because I see any arbitrary detention as significant.

I do however note that in Grant , the Supreme Court of Canada did find an arbitrary detention where there really was no basis to single out that accused and yet saw fit to admit the evidence. In the present matter, there was a reason to identify this accused and it was based on a public safety concern held by the officer. If there is an arbitrary detention through the initial stopping, it occurred in circumstances where the officer had to decide what to do, very quickly. If he was wrong, his error is largely technical, in that it involved engaging the lights a few seconds too soon.

Given these circumstances, I would not exclude the evidence based on this alleged breach. CONCLUSION [ 67 ] All of the Charter applications are dismissed. [ 68 ] Dated the 3 rd day of May, 2013. ______________________________ D.J. Kaiser, J