Her Majesty the Queen - v. -, 2016 SKPC 100

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 100 Date: July 27, 2016 Information: 90006591 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Grant Lamb Appearing: Mr. Chris Davison For the Crown Mr. Chris McLeod For the Accused DECISION ON CHARTER VOIR DIRE M. HINDS , J INTRODUCTION [ 1 ] Grant Lamb is charged that on or about the 3rd day of May A.D. 2014, at Regina, Saskatchewan, he had care or control of a motor vehicle while (1) impaired by alcohol and (2) over .08, contrary to sections 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] Prior to the commencement of the trial the Defendant filed a Notice of Charter Application alleging that the accused’s rights under sections 8, 9 and 10(

a) of the Charter of Rights and Freedoms ( Charter ) had been infringed or denied. During the course of

argument the Crown conceded that it had not proved the offence of care or control of a motor vehicle while impaired by alcohol beyond a reasonable doubt. [ 3 ] The Defence made the following arguments: (1) the police arbitrarily detained the accused when he was asked to leave his vehicle and come to the police vehicle, with no specific reason being given, contrary to

section 9 and 10(

a) of the Charter ; (2) the police did not have a reasonable suspicion that the accused had alcohol in his body prior to making the ASD demand, contrary to

section 8 of the Charter ; and [ 4 ] As a result of these breaches the defence seeks the remedy of exclusion of the results of the Approved Screening Device (ASD) and the breath sample analysis pursuant to subsection 24(2) of the Charter . [ 5 ] The Crown contends that the accused’s Charter rights were not violated. FACTS [ 6 ] Constables Douglas and Bespalko of the Regina Police Service were in an unmarked patrol car the night of May 3, 2014. Constable Douglas was the operator of the vehicle and Constable Bespalko was the passenger.

The car was equipped with two video cameras and microphones that recorded most of the interactions with the accused. [ 7 ] The officers were conducting radar, travelling eastbound on Ring Road, moving towards Victoria Avenue. Constable Douglas noticed a white Dodge pickup truck passing the patrol car in the left lane at a radar-recorded speed of 139 kilometres per hour.

The officers briefly followed the vehicle as it returned to the right lane and at 21:38:53 (approximately 9:39 p.m.) , a traffic stop was conducted near the Wascana Parkway overpass. [ 8 ] Constable Douglas approached the driver’s side door and requested Mr. Lamb to produce his driver’s licence and registration. Constable Bespalko went to the passenger side of the vehicle. There were six total occupants in the vehicle, including four occupants in the back seat, one in the passenger seat and the driver, Mr. Lamb. Mr. Lamb provided the registration for the company truck he was driving.

He told Constable Douglas that he did not have his driver’s license with him. [ 9 ] Based on all the evidence before me, I find that Constable Douglas smelled beverage alcohol coming from the vehicle when he was dealing with Mr. Lamb while he was seated in the driver’s seat of the truck. He also observed an empty beer stein behind the driver’s seat which was situated between a rear passenger’s feet. Constable Douglas asked Mr. Lamb if he had been drinking. Mr. Lamb indicated that he had not been drinking. Some of the other occupants of the vehicle indicated that they had been drinking earlier in the evening.

Constable Douglas did not believe Mr. Lamb. [ 10 ] The two officers met back at their unmarked police vehicle, while Mr. Lamb and his companions remained in the company truck. They briefly discussed the situation. Constable Bespalko determined and advised his partner that Mr. Lamb was a suspended driver from Ontario. Constable Douglas went back to the company truck and asked Mr. Lamb to come back to the police vehicle. At 21:47:02 Mr. Lamb was placed in the back of the police vehicle. At 21:47:30 Constable Douglas told Mr. Lamb that he wants to do an Approved Screening Device test on him.

At 21:47:47 hours, Constable Douglas read the ASD to

Mr. Lamb and explained how the device works. At 21:48:48 Mr. Lamb told Constable Douglas he has had nothing to drink that evening. Mr. Lamb then blew into the ASD three times. Mr. Lamb’s first two attempts resulted in error messages. His third attempt worked at 21:50:07. It was a fail result, which Constable Douglas indicated that Mr. Lamb had a blood alcohol concentration over 100 mg%. [ 11 ] At 21:53:37 hours, Constable Douglas read the breath test demand to Mr. Lamb, and at 21:54:57, Mr.

Lamb was placed under arrest for impaired operation of a motor vehicle and informed him of his right to counsel, and his right to remain silent. At that point he was briefly removed from the vehicle placed in handcuffs and put back into the vehicle. At road side Mr. Lamb declined to contact counsel, and remained co-operative with the officers. [ 12 ] The officers determined that the passengers of the company truck were all intoxicated and that no one should drive it. The officers called a taxi for the passengers of the company truck.

The officers also decided to seize the company truck and called a towing company. The officers made three attempts to have someone else assist them by coming to the scene of the vehicle stop and arrest, wait for the tow truck and ensure a taxi took the passengers away from the busy roadway. The officers got hold of police dispatch. Unfortunately, no other police units were available due to a high call load within the City of Regina that evening. The officers also called one of the Regina Police Service CID ( detective ) units for their assistance, however, they were tied up.

The officers also contacted the Wascana Centre Authority, however, they were unable to assist. The tow truck arrived between 22:25 and 22:30. The taxi arrived shortly after the tow truck arrived. The police departed for the police station at 22:30 and arrived shortly thereafter. [ 13 ] After 15 minutes of observation, two breath tests were taken from Mr. Lamb. The first breath test took place at 23:01:00. The second breath test was taken at 23:22. At approximately 23:23:00, Mr. Lamb was informed that he was being charged with exceeding .08, and his rights were read. Mr. Lamb understood and declined a lawyer.

He was then released on an appearance notice. ISSUES [ 14 ] The circumstances in this voir dire give rise to the following issues: 1. Was Mr. Lamb arbitrarily detained by the police, contrary to

section 9 of the Charter ? 2. Were Mr. Lamb's

section 10(

a) Charter rights breached when he was asked to get into the police vehicle? 3. Did the police have the necessary reasonable suspicion to make the ASD demand of Mr. Lamb pursuant to section 254(2) of the Criminal Code ? If not, has the accused established a breach of his

section 8 Charter right? 4. If a Charter breach(

s) are established should the evidence obtained be excluded from admission into evidence, pursuant to section 24(2) of the Charter . ANALYSIS 1. Was Mr. Lamb arbitrarily detained by the police, contrary to

section 9 of the Charter?

[15]

Section 9 of the Charter states as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [16] In R v Grant, 2009 SCC 32 at paragraph 25, the Court summarised the definition of “detention” found in Therens as follows: [D]etention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual’schoice simply to walk away. This encompasses not only explicit interference with the subject’s liberty by way of physical interference orexpress command, but any form of “compulsory restraint”.

A person is detained where he or she “submits or acquiesces in thedeprivation of liberty and reasonably believes that the choice to do otherwise does not exist” (Therens, at p. 644). [17] I find that the police were initially authorized to stop Mr. Lamb respecting the speeding infraction and to check for his driver’s licence and registration, the mechanical fitness of the truck and on his sobriety (s. 199 & 209.1 ofThe Traffic Safety Act, S.S. 2004, c. T-18.1). [18] Constable Douglas spent about several minutes with Mr. Lamb at his truck. During this time Mr.

Lamb produced the registration for the truck and spoke to the officer. During this time Constable Douglas smelled the odourof beverage alcohol coming from the truck, was advised by Mr. Lamb that he had not been drinking and did not have his driver’s licenseon him, was advised by the other occupants that they had been drinking and observed a beer stein at the feet of a passenger seated behindMr. Lamb. When Constable Douglas briefly met with his partner back in the police vehicle he told Constable Bespalko that he did notbelieve Mr.

Lamb had not been drinking and that he “thinks he is going to bring him back in here and make him blow”. ConstableDouglas then returned to the truck and instructed Mr. Lamb to come back and get into the back of the police car. Constable Douglasdid not tell Mr. Lamb why he was instructed to get into the back of the patrol car. Mr. Lamb rightly felt compelled to comply with thispolice instruction. [19] In R v Anderson, 2011 SKCA 13, police stopped the accused at 1:11 a.m. for traffic safety reasons. The traffic stop soon evolved into an impaired driving investigation.

Police told the accused to exit his vehicle and get in thepatrol car without any reason being given. The accused complied. At 1:14 a.m. the officer made an Approved Screening Devicedemand. The accused complied and failed. The Saskatchewan Court of Appeal found that despite the fact there was only a three minutedelay from the time of the traffic stop until the time of the ASD demand, the demand did not comply with the “forthwith” requirementsas set out in the case law. Mr. Justice Lane, speaking for the Court said: [18] ...

Finally, and most importantly for the purposes of this appeal, section 254(2) requires a police officer to make a demand. It is notuntil after the officer makes the demand that the accused becomes lawfully detained (See, for example, R v. Anderson, 2006 SKPC 18,276 Sask. R. 304 - note this is not the trial decision of this case). The demand must be made by the police officer as soon as the policeofficer forms the reasonable suspicion the driver has alcohol in his or her body (See: R. v.

Pierman (1994), (ON CA),19 O.R. (3d) 704 (C.A.), Arbour, J.A. dissenting in part, affirmed by the Supreme Court of Canada in (SCC), [1996] 1S.C.R. 68). [19] Assuming all the requirements of section 254(2) are met, the detention would not be arbitrary and there would be no infringement ofthe Respondent’s constitutional rights.

However, in the case before us, the officers did not demand an ASD when the accused was askedto go to the back of the police car. [20] The Appellant argues the demand was not necessary in the circumstances because it was clear to the Respondent why he was beingdetained and he knew in these circumstances a demand would be made. However, the Respondent’s Charter rights cannot so easily bedispensed with. As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away in theinterests of expediency.” (R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at paragraph 97).

The requirement that a demand be made doesnot impose an onerous obligation on the officer. The failure to make the demand makes the detention unlawful, arbitrary, and thereforecontrary to

section 9 of the Charter. [emphasis added]

[20] I am satisfied on a balance of probabilities that Mr. Lamb was arbitrarily detained by the police from the time he was instructed to get out of his truck (21:46:35) until the time he was asked to provide a breath sample in theApproved Screening Device (21:47: 45), in violation of his rights under

section 9 of the Charter. 2. Were Lamb's

section 10(

a) Charter rights breached because Constable Lamb did not tell Mr. Lamb why he was detainedwhen he was asked to get into the police vehicle? [21]

Section 10(

a) of the Charter reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; [22] In R v Birnie, 2013 SKPC 50 at para 32 , Judge Kalmakoff as he then was, states as follows: [32] ...Individuals who are detained for investigative purposes must be promptly advised, in clear and simple language, of the reasons fortheir detention: R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59. The information provided to the detainee must be sufficient topermit him to make a reasonable decision as to whether or not to submit to the arrest or detention: R. v. Evans, (SCC),[1991] 1 S.C.R. 869, and also to exercise his right to counsel in a meaningful way: R. v. Nguyen, 2008 ONCA 49 . In assessingwhether the

section 10(

a) requirement has been met, it is the substance of the interaction, not the formal wording used that is important. The pertinent question is whether the accused can reasonably be supposed to have understood the basis for the investigation: See R. v.Evans, supra; R. v. S.E.V., 2009 ABCA 108 ; R. v. Carrier, 2008 ABCA 134 ; R. v. Lund, 2008 ABCA 373 . [23] As noted in the

section 9 discussion, Constable Douglas instructed Mr. Lamb to leave his vehicle at approximately 21:46:35. Mr. Lamb complied. At this point in time Mr. Lamb was detained. It was not until a minute laterat 21:47:35 that Constable Douglas informed him why he has been placed in the car, which was for the purpose of an ASD test. Tenseconds later at 21:47:45 Constable Douglas read Mr. Lamb the Approved Screening Device (ASD) demand. [24] In this case I find that Mr. Lamb’s 10(

a) right to be informed promptly of the reason for his second detention was violated forapproximately one minute. 3. Did the police have the necessary reasonable suspicion to make the ASD demand of Mr. Lamb pursuant to section 254(2)of the Criminal Code? If not, has the accused established a breach of his

section 8 Charter right? [25] Section 254(2)(

b) of the Criminal Code reads as follows: 254

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

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

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose.

[26] In R v Kang-Brown, 2008 SCC 18 at para 75, [2008] 1 SCR 456, the Supreme Court of Canada held that reasonable suspicion means, “something more than a mere suspicion and something less than a belief based uponreasonable and probable grounds”. [27] In R v Chehil, 2013 SCC 49 , [2013] 3 SCR 220 [Chehil], the Supreme Court of Canada held that: 1. “Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded inobjective facts” but “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime”(para. 27). 2.

According to the Court the standard, “derives its rigour from the requirement that it be based on objectively discernible facts, whichcan then be subjected to independent judicial scrutiny” (para. 26). 3. In assessing whether or not this threshold is met, a reviewing court must have regard to the “totality of the circumstances”. Theassessment, “must be fact-based, flexible, and grounded in common sense and practical, everyday experience” (para. 29). [28] At paragraph 33 in R v Yates, 2014 SKCA 52 the Saskatchewan Court of Appeal determined that the requirements for a validsection 254(2)(

b) demand essentially are that: (

i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer's subjective suspicion must be based on a constellation of objectively verifiable circumstances, which collectivelyindicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [29] In Yates the Court went on to elaborate on the requirements as follows at paragraph 34: [34] Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his orher body.

Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation. Rather,the adequacy of a police officer's suspicion is to be assessed under the de novo analysis called for in R. v. MacKenzie using this test:would a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiableevidence, reasonably suspect the driver had alcohol in his or her body?

The reviewing court is not to consider whether the investigatingofficer's suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to considerwhether the investigating officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion that alcoholwas present in the driver's body.

It is an error in law to dissect the constellation of circumstances and individually test each circumstanceor the absence of other circumstances. [emphasis added] [30] A review of Constable Douglas’s testimony reveals that he based his suspicion that Mr. Lamb had alcohol in his body and that Mr. Lamb had operated a motor vehicle within the preceding three hours, upon the followingobservations:

1. Shortly before 9:30 p.m. on Friday May 3, 2014, he and his partner were driving along Ring Road . He saw a white truck pass by the police car at a high rate of speed. Radar equipment used by police clocked the truck to be driving at 139 kmph. The police activated their lights and siren. The driver, Mr. Lamb pulled his truck to the side of the roadway. The initial stop concerned a speeding infraction. 2. There were a total of six people in the truck. Constable Douglas could smell beverage alcohol coming from the inside of the truck as he spoke to Mr. Lamb at roadside.

The other occupants of the truck said they had been drinking and were visibly intoxicated. Mr. Lamb told Constable Douglas he had not been drinking. Constable Douglas also observed an empty beer stein behind the driver ’ s seat which was situated between a rear passenger ’ s feet. 3. Mr. Lamb provided Constable Douglas with a copy of the registration to the vehicle. Mr. Lamb told Constable Douglas he did not have his driver ’ s license with him. This was not true. Shortly thereafter and prior to escorting Mr. Lamb back to the police vehicle, the police determined that in fact Mr.

Lamb had been suspended from operating a motor vehicle from the Province of Ontario, since 2007. 4. Once Mr. Lamb was placed in the back of the police vehicle, Constable Douglas could smell an odour of beverage alcohol coming from him. [ 31 ] It is also noted that the ASD test resulted in a fail result.

As was pointed out in R v Gunn , 2012 SKCA 80 at paragraph 21 , “ The evidence of a “ fail ” result is also strong objective evidence which will assist the court in its after -the-fact assessment of the reliability of the officer ’ s belief. ” [ 32 ] In this case, I am satisfied that Constable Douglas subjectively (or honestly) suspected Mr. Lamb had alcohol in his body and the officer ’ s suspicion was reasonable on an objective basis, looking at the facts known to the officer. As a result, I find that he had the statutory authority to make the ASD demand and there was no breach of

section 8 of the Charter . 4. If a Charter breach under sections 8, 9 or 10(

a) is established should the evidence obtained thereafter be excluded from admission into evidence, pursuant to section 24(2) of the Charter ? [ 33 ] In Grant , the Supreme Court set out three avenues of inquiries in order to determine whether evidence obtained as the result of a Charter violation is admissible: 1. The seriousness of the Charter -infringing state conduct which led to the discovery of the evidence; 2. The impact on the Charter -protected interests of the accused; and 3. Society's interest in an adjudication of the case on the merits. [ 34 ] In this case I have determined there has been a breach of Mr. Lamb ’ s rights under sections 9 and 10(

a) of the Charter. [ 35 ] In R v Anderson , supra , Mr. Justice Lane conducted the Grant analysis on a very similar roadside

section 9 Charter breach, as follows:

25 In my view, the Charter breach was not serious. The Appellant says the requirement the Respondent go back to the police car was largely for police safety. The demand was made within three minutes. Although the overall conduct of the police officers was unfortunate in the circumstances by not informing the Respondent of the reasons why he was asked to go back to the police car, the Respondent knew that he was being questioned about drinking and driving. . . . 27 In my view, the short period of detention indicates the impact of the breach on the Respondent ’ s right to be free from arbitrary detention was minor.

There was no further intrusion into his privacy, or bodily integrity or dignity ( Grant , para. 111 ). . . . 29 Society has an obvious interest in litigating the matter on the merits.

The issue of impaired driving and the potentially serious consequences thereof, including endangering the lives of others, leads to inclusion of the evidence. . . . 31 In all of the circumstances, the admission of the evidence would not bring the administration of justice into disrepute and the evidence should be admitted. [ 36 ] I adopt this analysis and apply it to this case. [ 37 ] In my view the Charter breaches were not serious. In the present case, Mr. Lamb was detained for the second time for one minute, between 21:46:35 and 21:47:35 before Mr.

Lamb was told by Constable Douglas that he was placed in the police vehicle for the purpose of an ASD test. Ten seconds later at 21:47:45 Constable Douglas read Mr. Lamb the ASD demand. This short period of detention and not being told of the reason for his detention indicates the impact of the breach on Mr. Lamb ’ s right to be free from arbitrary detention and to be to be informed promptly of the reasons for detention was minor. Moreover, it is likely that Mr. Lamb knew why he was being detained. Given that Mr.

Douglas had been driving his truck on a Friday evening at a high rate of speed, full of passengers who had been drinking and who would have emitted the odour of beverage alcohol within the truck, it should not come as a complete surprise to Mr.

Lamb that the police were investigating him for a drinking and driving offence. [ 38 ] I am also of the view that society has an obvious interest in litigating drinking and driving offences on the merits, which are all too common in the Province of Saskatchewan. [ 39 ] Having regard to all the circumstances I am of the view that the admission of the “ Fail ” reading on the ASD test and the Certificate of Qualified Technician (Exhibit P-1) would not bring the administration of justice into disrepute and accordingly, I rule that both shall be admitted into evidence at trial .

SUMMARY [ 40 ] I have determined that there was a breach of Mr. Lamb ’ s

section 9 and 10(

a) Charter rights at roadside. I did not find a breach of Mr. Lamb ’ s

section 8 Charter rights. I embarked upon the section 24(2) Charter analysis and found that the “ Fail ” reading on the ASD and Certificate of Analyses should be admitted into evidence at the trial.

____________________________ M. Hinds, J