Her Majesty the Queen - v. -, 2013 SKPC 81

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 081 Date: May 14, 2013 Information: 24379852 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Frank Antosh Appearing: A. Davis For the Crown J. Graham For the Accused RULING ON VOIR DIRE J. BENISON , J CHARGE [ 1 ] The accused is charged that on April 21, 2012, at Bienfait, Saskatchewan, while his ability was impaired by a drug, he did operate a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code . CIRCUMSTANCES

[ 2 ] Constable Classen, of Estevan RCMP, was patrolling in Bienfait on April 21, 2012. He observed the accused driving a truck and then saw the truck parked in a back alley with the doors being opened. The officer decided to check the vehicle and, noting a strong smell of marihuana, he arrested the accused and the two passengers for possession of marihuana. The officer then questioned the accused in the police cruiser and obtained an admission that the accused had recently consumed marihuana. He then purported to arrest the accused for driving while impaired by a drug.

At this time the officer also read what he described as a DRE demand. The accused was taken to Estevan Police Service for DRE testing by Cst. Sinclair. VOIR DIRE [ 3 ] A voir dire was held to consider alleged Charter breaches and possible exclusion of evidence. ISSUES

(1) Was the initial detention lawful?

(2) Was the arrest lawful? If not, should this result in exclusion of evidence?

(3) Did the investigating officer have reasonable grounds for a DRE demand under s. 254(3.1)? If not, should this result in exclusion of evidence? ANALYSIS

(1) Was the initial detention lawful? [ 4 ] It is necessary to consider Cst. Classen’s testimony in detail to determine his reason for the initial stop. His testimony is somewhat ambiguous. The officer testified that while the truck was being driven, one of the passengers made eye contact with him. When the truck stopped in a back alley, the officer “found it odd” that a passenger jumped out, opened the truck doors and then went around to the driver’s side and opened the driver’s door.

The reason given by the officer for activating his lights and approaching the accused’s vehicle was that he “found this odd” and decided to check what was going on. The officer, when asked by Crown counsel what his purpose was, stated that it was licence, registration and sobriety checks. He thought that they were possibly going to switch drivers after they had seen him. [ 5 ] The circumstances are somewhat similar to those in R. v. Houben , 2006 SKCA 129 , where the officers stopped the accused to satisfy their curiousity as to what he was up to.

In Houben , the Saskatchewan Court of Appeal affirmed the lower Court finding that the detention was arbitrary. The one difference between Houben and the case before me is that the officer here had a legitimate concern that the occupants of the vehicle might be planning to switch drivers. While switching drivers is not in itself an offence, it could clearly give rise to a suspicion that an attempt was perhaps being made to avoid liability for an offence, such as lack of a driver’s licence or impairment by alcohol or a drug.

In such a situation, where the conduct raises in the mind of the officer a suspicion of illegal conduct, the detention is justified. To find otherwise would place a very heavy burden on the power of an officer to investigate potential offences. For this reason it is my conclusion that the initial detention of the accused was lawful.

(2) Was the arrest lawful? If not, should this result in exclusion of evidence? [ 6 ] As the officer stopped beside the accused’s vehicle and activated his lights, he saw a passenger open the truck doors and then go around to the driver’s side and open the driver’s door. The officer said to the passenger: “Hey, what are you doing?” The passenger said he was looking for his cell phone. As the officer got closer to the vehicle, he noted a strong odour of marihuana coming from inside the vehicle; he described it as an odour of recently-consumed marihuana. He then checked the accused’s licence and registration.

The officer said that the accused looked very nervous, his hands were shaking when getting his licence from his wallet; he noted that his eyes were very red and his pupils seemed abnormally small. He described the accused’s speech as lethargic, long and drawn out, “just kinda drowsy, drawn out”.

[ 7 ] According to the officer’s testimony, he formed the belief that there was marihuana in the vehicle and he told all three occupants of the vehicle that they were under arrest for possession of a controlled substance. It is my conclusion that the officer did not have lawful authority to arrest the accused. The authority for a peace officer to arrest an accused without warrant is found in s. 495(1) of the Criminal Code which states: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, (

b) a person whom he finds committing a criminal offence, or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [ 8 ] The officer testified that he was sure that there was marihuana in the truck. He had absolutely no basis for this belief. He noted an odour of recently consumed marihuana, which could not be the foundation for a belief that there was fresh marihuana in the truck. His belief was purely speculative. [ 9 ] In the case before me, subsection (

a) is not relevant, since the alleged offence, possession of marihuana, is not an indictable offence. Likewise subsection (

c) has no application to this case. [ 10 ] Accordingly, for the officer’s arrest to be lawful he was required to have found the accused committing the offence of possession of marihuana. The only basis for the officer’s arrest set out in his testimony was a strong odour of recently consumed marihuana. This observation alone cannot provide the officer with any grounds to believe that the accused had marihuana in his possession. The Saskatchewan Court of Appeal dealt with this very issue in R. v. Janvier , 2007 SKCA 147 .

The only difference between Janvier and the case before me is that the officer in Janvier described the odour as burned marihuana, which is effectively the same thing as recently-consumed marihuana. In Janvier , the Court concluded at paragraph 48: In

summary, as a matter of statutory construction, s. 495(1)(

b) does not permit an arrest based on the smell of burned marihuana alone. An officer smelling burned marihuana does not find a person committing the offence of possession of marihuana. If, contrary to my primary conclusion, s. 495(1)(

b) permits reliance upon an inference based on observation (i.e., smell), the smell of burned marihuana alone is not sufficient to support a reasonable inference that more, unsmoked marihuana will be present. Arresting someone is the penultimate interference with liberty, short of being in custody. In the circumstances of a

summary conviction offence, which is recognized to be a less serious offence, Parliament has established a more constrained arrest power. [ 11 ] The Court upheld the trial judge’s conclusion that the officer lacked the authority to arrest the accused. Application of s. 24(2) Charter [ 12 ] The defence argues for exclusion of a statement made by the accused admitting to recent use of marihuana. After arresting the accused for possession of marihuana, the officer gave the accused his rights to counsel which consisted of: “Do you want to call a lawyer?” I find this to be a wilful or reckless disregard on the officer’s part of the accused’s rights under s. 10(

b) of the Charter , which states: 10 Everyone has the right on arrest or detention .... (

b) to retain and instruct counsel without delay and to be informed of that right.

[13] The officer was aware of how to advise an accused person of his rights to counsel; when he subsequently purported to arrestthe accused for impaired driving, he read the standard right to counsel from a card, which complied with s. 10(b). It is also worthy ofnote that the officer, after arresting the accused for possession of marihuana, did not advise him that he was pursuing an impaired drivinginvestigation. [14] The officer then proceeded to question the accused, having formed the opinion that the accused was “stoned”, which he saidmeant intoxicated by a drug that he believed to be marihuana.

In answer to the officer’s question, the accused stated that he had smokeda bowl an hour ago. With this piece of information, the officer testified, he now believed that the accused was impaired by marihuana orstoned and that he should not have been driving. After telephoning Cst. Sinclair, a drug recognition expert in Estevan, he advised theaccused that he was under arrest for impaired driving.

The officer also read to the accused a demand under s. 254(3.1) requiring theaccused to submit to an evaluation by an evaluation officer relating to possible impairment by a drug and/or alcohol. [15] In seeking to determine whether evidence should be excluded under s. 24(2) of the Charter, I am required to follow theprocedure set out in R. v.

Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1, which requires a judge to consider “whether areasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission ofthe evidence would bring the administration of justice into disrepute”. [16] The first of the three factors to be considered is the seriousness of the alleged breach. In Grant, at paragraph 74, the Courtstated: State conduct resulting in Charter violations varies in seriousness.

At one end of the spectrum, admission of evidence obtained throughan inadvertent or minor violation of the Charter may minimally undermine public confidence and rule of law. At the other end of thespectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect onthe public confidence in the rule of law, and the risk of bringing the administration of justice into disrepute. [17] With reference to the specific issue of unlawful arrest, the Court stated in another leading case R. v. Duguay et al, (ON CA), 1985 O.J.

No. 2492, at paragraph 25: It cannot be that every unlawful arrest necessarily falls within the words “arbitrarily detained”. The grounds upon which an arrest wasmade may fall “just short” of constituting reasonable and probable cause. The person making the arrest may honestly, thoughmistakenly, believe that reasonable and probable grounds for the arrest exist and there may be some basis for that belief. In thosecircumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary.

On the other hand,the entire absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could havegenuinely believed that such grounds existed. In such cases, the conclusion would be that the person arrested was arbitrarily detained.

Between these two ends of the spectrum, shading from white to grey to black, the issue of whether an accused was arbitrarily detainedwill depend, basically, on two considerations: first, the particular facts of the case, and secondly, the view taken by the court with respectto the extent of the departure from the standard of reasonable and probable grounds and the honesty of the belief and basis for the beliefin the existence of reasonable and probable grounds on the part of the person making the arrest. [18] In considering the circumstances of the case before me, I find that there was a total absence of reasonable grounds for thearrest.

There was absolutely no basis for the officer’s alleged belief that there was marihuana in the vehicle. No reasonable personwould have concluded on this evidence that the officer had the requisite grounds for the arrest. It should be noted that the officer hasmore than seven years experience. Based on the analysis in Duguay et al, supra, I conclude that the accused was arbitrarily detained incontravention of

section 9 of the Charter. [19] On the evidence before me, I have to conclude that the arrest was not made in good faith. The officer had decided to embarkon an impaired driving investigation and obtained an admission from the accused without even providing him with proper rights tocounsel or advising him that he was being investigated for suspected impaired driving. The accused was 19 years old at the time of thecharge. Taking all these circumstances into consideration, I find that the breach falls into the more serious category.

[20] Secondly I have to consider the impact of the breach on the Charter-protected interests of the accused. The situation in thecase before me must be distinguished from a situation where an individual is detained for an impaired driving investigation. Theinvestigating officer has the right to question the individual about use or consumption of drugs or alcohol with a view to obtaininggrounds to make a demand. In this case, the 19-year-old accused was arrested, was not told that he was being investigated for a possibleimpaired driving offence, was not given complete advice as to his rights under s. 10(

b) of the Charter and then was questioned about theuse of marihuana. Although under arrest, the accused was not advised of his right under the Charter to remain silent. On these facts, inmy opinion, the impact of the breach on the accused’s rights tends to favour exclusion of the impugned evidence. [21] Thirdly I have to consider society’s interest in an adjudication on the merits. There is no question that impaired drivingoffences are a major blight on modern society. Clearly society has an interest in bringing impaired driving cases to adjudication.

Nevertheless, the evidence sought to be excluded is not necessarily critical to the Crown’s case. In an impaired driving case, as opposedto a .08 case relying on the admission of a Certificate of Analyses, there will remain in any event the testimony as to the symptoms ofalleged impairment.

Despite this, consideration under this heading tends to favour admission of the evidence. [22] In considering all of the circumstances referred to above in the three lines of inquiry, it is my conclusion, on balance, thatadmission of the evidence of the accused’s statement of having recently used marihuana would bring the administration of justice intodisrepute. Accordingly the evidence shall be excluded.

(3) Did the investigating officer have reasonable grounds for a DRE demand under s. 254(3.1)? If not, should this result inexclusion of evidence? [23] The officer made the following observations prior to making the demand: • Accused seemed very nervous, his hands were shaking. • Accused’s eyes were very red and his pupils seemed abnormally small. • Accused’s speech was lethargic. [24] Based on these observations, it was the officer’s conclusion that the accused was stoned, meaning impaired by a drug.

Theofficer further testified that it was only when the accused admitted to recent use of marihuana that he concluded that the accused wasimpaired and should not be driving. It is clear from his testimony that the officer attributed different meanings to the words stoned andimpaired. Neither counsel questioned him on the meaning that he attributed to these words. It is also clear from the officer’s testimonythat it was only after the accused’s admission of recent marihuana use that the officer believed that he had grounds to make a demand.

Ican only infer from this that, prior to the accused’s admission, the officer did not believe that the accused’s ability to operate a motorvehicle was impaired by a drug. In view of the fact that I have excluded the accused’s admission from evidence, it follows that theofficer, subjectively, did not have reasonable grounds to make the demand. The Courts have interpreted s. 254 of the Criminal Code torequire that the officer have reasonable grounds, both subjectively and objectively. See R. v. Shepherd, 2009 SCC 35 , 2009S.C.J.

No. 35. [25] The present case involves alleged impairment by drugs, which is somewhat different from cases involving impairment byalcohol. In the latter cases the Court can in effect take judicial notice of the standard signs of impairment such as bloodshot eyes, flushedface, unsteadiness on feet and slurred speech. However, in a situation involving alleged impairment by drugs there are no standardsymptoms. The fact that the accused’s hands were shaking when trying to get his licence from his wallet, in the absence of expertevidence, does not give any indication of impairment by a drug.

A more logical assumption, suggested by the investigating officerhimself, was that the accused was nervous, as most people would be when placed under arrest. Likewise the lethargic speech of theaccused is of little evidentiary value unless contrasted with the accused’s speech on other occasions. With reference to the redness of theaccused’s eyes and the smallness of his pupils, there is no basis on which I can find that this is a symptom of impairment by a drug.

Imust also consider the fact that the officer did not observe any erratic driving by the accused or any other signs such as unsteadiness onfeet, staggering or swaying which would clearly go to the accused’s ability to operate a motor vehicle. Accordingly, even on an objectivebasis, I would find that the symptoms observed by the officer fell short of providing him with reasonable grounds to make a DRE

demand. EXCLUSION OF EVIDENCE [ 26 ] In the absence of a lawful demand the accused was arbitrarily detained for the period of time during which he was compelled to submit to DRE testing. On a Grant analysis the same considerations set out earlier in my decision carry forward to this second Charter breach. I therefore conclude that admission of any evidence of the tests conducted on the accused after he was taken to Estevan Police Service and the opinion of the testing officer would bring the administration of justice into disrepute. Accordingly, such evidence shall be excluded in the trial of this matter. J. Benison, J