Her Majesty the Queen - v. -, 2013 SKPC 221

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 221 Date: June 11, 2013 Information: 44331018 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Edwin Tesser Appearing: Mr. Bruce Bauer, Q.C. For the Crown Mr. Michael Owens For the Accused JUDGMENT D.C.

SCOTT , J Introduction [ 1 ] The accused Edwin Tesser is charged that he failed or refused to comply with a demand made pursuant to s. 254(2) of the Criminal Code to provide a breath sample for analysis in an approved screening device (ASD) contrary to section 254(5) of the Criminal Code . [ 2 ] The accused brought an application under the Charter of Rights and Freedoms alleging his s. 8 , 9 and 10(

b) Charter rights

were violated, although no argument was made with respect to s. 8. He seeks the exclusion of evidence of the refusal under s. 24(2) ofthe Charter and a judicial stay of proceedings or some other remedy under s. 24(1) of the Charter. Further, the accused argued theCrown has not proven beyond a reasonable doubt that he refused the officer’s demand. [3] The trial, proceeding by voir dire, commenced on May 7, 2012 and continued on October 26, 2012. Constable BradMcAvoy, Constable Nathan Sadownick and Sergeant Keith Meckelborg, all of the Saskatoon Police Service testified on behalf of theCrown. Mr.

Tesser testified on his own behalf. Mr. Derek Likness also testified for the Defence. [4] At the conclusion of the voir dire all evidence was applied to the trial proper with the consent of counsel. The Crown andDefence closed their cases. Argument was heard April 12, 2013 and all matters were reserved for decision. Background [5] The accused Edwin Tesser is from Whitby, Ontario and was in Saskatoon on August 21, 2011 to inquire about a job. Hewas staying with a friend Derek Likness at Mr. Likness’ mother’s home in Saskatoon. Mr. Tesser testified that he and Mr.

Likness hadattended Folkfest on the evening in question. Mr. Tesser was the designated driver. [6] At approximately 2:13 a.m., the vehicle driven by the accused was stopped by Constable Brad McAvoy of the SaskatoonPolice Service because of an expired vehicle registration. Constable McAvoy observed the odour of beverage alcohol emanating frominside the vehicle. He asked Mr. Tesser to accompany him to the patrol vehicle, where he observed the odour of alcohol to be comingfrom the breath of the accused. The officer made an ASD demand to which Mr. Tesser’s response was “I decline”.

Constable McAvoyrepeated the demand and again Mr. Tesser responded, “I decline”. He was arrested, informed of his right to counsel and taken todetention at the Saskatoon Police Station. [7] Mr. Tesser was placed in a phone room and provided with a telephone book. He did not know any lawyers in Saskatoon andselected a law firm from the yellow pages, which Cst. McAvoy called and left a message. Mr. Tesser did not ask to make any furthercalls to a lawyer. [8] He was detained with the intention of arranging for his release before a justice of the peace, because he was from out ofprovince.

While in police cells he was not given anything to eat or drink and was not provided with a blanket or pillow but initially witha saturated sponge mat. He was eventually released on a Recognizance with the posting of $500.00 cash bail. Mr. Tesser remained incustody until 12:50 p.m. on August 21, 2011. Issues 1. Did the officer have the requisite grounds to make an ASD demand? 2. Did the officer make a proper demand? 3. Has the Crown proven beyond a reasonable doubt that the accused refused to provide a sample of his breath, and that he intendedto do so? 4. Did the accused put forward a reasonable excuse? 5.

Was there a breach of the accused’s right to counsel under s. 10(

b) of the Charter and if so, what is the appropriate remedy? 6. Was there a breach of the accused’s s. 9 Charter right to be free from arbitrary detention, and if so, what is the appropriateremedy? Discussion [9] Mr. Tesser, the accused, testified on his own behalf. Therefore, according to the principles set out in the decisions of R. v.W.D. (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. McKenzie (P.N.), (SK CA), [1996] 141

Sask. R. 221 (Sask. C.A.), I must consider his testimony in light of all of the evidence, in assessing Mr. Tesser’s credibility and whetherthe offence has been proven beyond a reasonable doubt. [10] Section 254(2) of the Criminal Code provides in part: 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...the peace officer may, by demand, require the person... ... (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [11] The offence of refusal is found in s. 254(5) of the Criminal Code: 254(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peaceofficer under this section. [12] To establish the offence of refusal, the Crown must prove beyond a reasonable doubt that (1) a proper demand was made; (2)the accused failed or refused to provide a sample of breath; and (3) the accused intended to produce that failure.

The accused may offer areasonable excuse for failing or refusing to provide a breath sample (R. v. Lewko, 2002 SKCA 121 , [2002] S.J. No. 622 (Sask.C.A.) para. 9). 1. Did the officer have the requisite grounds to make an ASD demand? [13] Section 254(2) requires an officer to hold a reasonable suspicion that the accused has alcohol in his or her body and hasoperated a motor vehicle within the preceding three hours. It is not disputed that the accused was operating the motor vehicle when itwas stopped by Cst. McAvoy. The Defence questions, however, whether Cst.

McAvoy held a reasonable suspicion that the accused hadalcohol in his body. [14] Cst. McAvoy testified he detected the odour of alcohol emanating from the vehicle while standing at the driver’s door openwindow. The officer testified that once in the patrol car, he observed the odour of alcohol to be from the accused’s breath. [15] Mr. Tesser testified that he had consumed only one small glass of wine at dinner between 5:30 p.m. and 5:45 p.m. but whenasked if he had consumed alcohol, Mr. Tesser responded that he had not, because he considered dinner to have been the evening before. However, Mr.

Tesser’s passenger had been drinking throughout the evening, which was not explained to the officer. As well, Mr. Tessertestified that at approximately 1:00 a.m., a half-tray of liquor shots was spilled on his left arm and his pants while they were at one of theFolkfest pavilions. Neither was this information conveyed to the officer. [16] The Defence argues that given the time when the accused had last consumed alcohol, Mr. Tesser could not have had alcoholin his body at the time of the stop at 2:15 a.m. The Defence relies on R. v. Vermette, [1997] S.J. No. 914 (Sask. Q.B.).

However, thatcase is distinguishable from the present case. In Vermette, the officer relied simply upon the accused’s statement that he had one drinkand that he was behaving in a nervous manner. He did not make further inquiries as to when the accused had last consumed alcohol. Hedid not detect the odour of alcohol until after he made the demand. Allbright J. decided that the officer had to do more to ensure he had areasonable suspicion. [17] In the present case, Cst.

McAvoy detected the odour of alcohol while still at the vehicle driven by the accused and then againin the patrol car, after he had isolated the accused from the passenger. The officer’s observations are supported by the accused’stestimony that his passenger had been drinking and that a tray of alcohol had been spilled on his arm and pants. Unlike in Vermette, Cst.McAvoy’s observations occurred before he made the demand.

[ 18 ] I agree with the Crown, relying on R. v. Gunn , 2012 SKCA 80 , at para. 15 [originally mis-cited as 2010 SKCA 44 ], that it is not necessary to prove the accused actually had alcohol in his blood; in other words, the Crown need not prove the officer’s suspicion was true or accurate. Rather, the question is whether, based upon all of the circumstances, the officer was capable of reaching the suspicion that he held. The officer must subjectively have a suspicion and in all of the circumstances the suspicion must be objectively reasonable. [ 19 ] Even accepting Mr.

Tesser’s testimony with respect to the time of last consumption, the officer’s suspicion that the accused had alcohol in his body, based upon his observation of the odour of alcohol at the vehicle and from the accused’s breath, is objectively reasonable. Mr. Tesser’s passenger had been consuming alcohol. And, considerable alcohol had been spilled on the accused approximately one hour before.

However, this was not communicated to the officer at roadside. [ 20 ] In all of the circumstances, I accept the officer possessed the requisite suspicion that the accused had alcohol in his body and that his suspicion was reasonable. 2. Did the officer make a proper demand? [ 21 ] The officer read into the record the demand reproduced in his notebook which he read to the accused, as follows: I have reasonable grounds to suspect that you have alcohol or a drug in your body.

In accordance with the Criminal Code I demand that you provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose of providing such samples. Do you understand? [ 22 ] The Defence argues that the demand was not proper because it was misleading. The officer’s demand did not say the accused was to provide a sample of his breath “forthwith”, as required by the statute; further, the officer’s demand included the requirement for the accused to “accompany” him for the purpose of providing the sample.

At the time of the demand, the accused was already in the rear of the patrol car and the officer had not yet retrieved the ASD from the trunk of the patrol vehicle to present to the accused. [ 23 ] I find that the officer’s demand was proper. He read the standard wording in his notebook used by officers of the Saskatoon Police Service when making an ASD demand.

Although the word “forthwith” appears in s. 254(2) of the Code , its inclusion is not essential to a proper demand, so long as the demand is made and the sample is taken forthwith. [ 24 ] The officer read that portion of the demand requiring a driver to “accompany” him for the purpose of providing an ASD sample, even though the accused was already in the patrol car and the ASD was in the trunk of the vehicle.

The use of the words “accompany me” in these circumstances did not render improper the otherwise proper demand nor could there reasonably be any confusion or doubt that he was asking the accused to provide a sample of his breath into an approved screening device. 3. Has the Crown proven beyond a reasonable doubt that the accused refused to provide a sample of his breath and that he intended to do so? [ 25 ] In response to the demand made by Cst. McAvoy, the accused asked the officer, “does this mean you’d like me to breathe into a breathalyzer?” to which the officer responded by reading the demand again.

The accused repeated his question and the officer responded “yes”. According to the evidence, Mr. Tesser twice responded to the officer’s demand by stating “I decline”. Mr. Tesser acknowledges that Cst. McAvoy explained to him the consequences of refusing to provide a sample but he did not change his response. [ 26 ] The accused testified it was never explained to him that he was being asked to provide a sample of his breath at the roadside and that he did not know what an approved screening device was—he had not heard of such a device.

He believed he was being asked to breathe into a device at the police station. He acknowledged he did not ask for further clarification and that the officer did not ask him to breathe into a “breathalyzer” nor did he ask Mr. Tesser to go to the police station to do so.

[27] The Defence argues that the accused cannot have intended to refuse to do something which he did not understand. TheDefence argues the demand was unclear and that Mr. Tesser believed he was required to accompany the officer somewhere, such as thepolice station, to provide a breath sample in a breathalyzer machine. The Defence argues this is supported by the accused’s testimonythat he assumed the officer was making a demand that he breathe into a breathalyzer and that he was required to accompany the officerto the police station to do so.

He testified that he declined to do so because he did not want “this to drag on”. [28] In his testimony, Mr. Tesser was equivocal with respect to his understanding. He acknowledged that the officer asked if heunderstood and that he responded “yes”. Then he testified he did not think he answered the officer’s question. Finally he stated that hedid not understand. [29] Mr. Tesser’s testimony does not raise a reasonable doubt that he refused to provide a sample of his breath and that he intendedto refuse. The essence of the demand was that the accused provide a sample of his breath and Mr. Tesser understood this.

This isreflected by his question to the officer “do you mean you want me to breathe into a breathalyzer?” The officer’s affirmative responsewas not misleading; as Cst. Sadownick testified, the term “breathalyzer” can be used as a generic term to describe the device at theroadside or at the police station. [30] Even accepting Mr. Tesser’s testimony on this point, he understood he was being asked for a sample of his breath andresponded that he declined to provide one. The demand was made twice and both times he declined, even after the officer explained tohim the consequences of doing so.

The response, “I decline”, was definitive and without hesitation. [31] I am not left with a reasonable doubt by the testimony of the accused that he refused to provide a sample of his breath andintended to do so. Neither am I left with a reasonable doubt on all of the evidence. The Crown has established beyond a reasonabledoubt that Mr. Tesser understood he was to provide a breath sample, unequivocally refused and intended to do so. 4. Did the accused offer a reasonable excuse? [32] Mr.

Tesser testified he refused to provide a sample of his breath because he thought he was being asked to accompany theofficer to the police station and he did not want the situation to drag on. Even accepting Mr. Tesser’s testimony on this point, hisexplanation that he thought he had to go to the police station rather than provide a sample of his breath at the roadside is not a reasonableexcuse for refusing. The inconvenience of attending at the police station does not afford the accused with a reasonable excuse ascontemplated by s. 254(5) of the Code. [33] I find Mr.

Tesser has failed to offer a reasonable excuse for failing to provide a sample of his breath. 5. Was there a breach of the accused’s right to counsel under s. 10(

b) of the Charter and if so, what is the appropriateremedy? [34] The Defence argues that Mr. Tesser was not afforded his right to counsel at the police station and therefore the evidence ofhis “refusal” should be excluded under s. 24(2) of the Charter. The Crown argues that there is no nexus between any infringement onthe right to counsel at the police station and the refusal at the roadside, and therefore the accused is not entitled to exclusion of theevidence of his refusal. [35] There is judicial acceptance of an infringement of the right to counsel under s. 10(

b) of the Charter at roadside, where an ASDdemand has been made, so long as the statutory requirement that the demand be made and the sample taken “forthwith” (R. v. Dewald(1994), (ON CA), 19 O.R. (3d) 704 (Ont. C.A.), para. 5; R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205,

para. 29 ). In this case, there was no suggestion that the ASD demand was not made forthwith, nor any allegation of breach of right to counsel at the roadside. [ 36 ] Rather, the basis of Mr. Tesser’s allegation that his right to counsel was breached arises out of circumstances which occurred at the police station, involving the failure of the officer to offer Mr. Tesser the home phone number of a lawyer, given the time of day. [ 37 ] In R. v.

Salisbury , 2011 SKQB 153 (affirmed by the Court of Appeal at 2012 SKCA 32 ), the alleged Charter breach occurred after the commission of the offences and after the investigation had been complete. There was no connection between the breach and the charges. Accordingly, Gerein J. held that the remedy of a judicial stay granted by the trial judge was disproportionate to the violation of the Charter . [ 38 ] There is no connection between the alleged infringement of Mr. Tesser’s right to counsel and the offence of refusal. Mr. Tesser was not entitled to right to counsel at the roadside in these circumstances.

Any right to contact counsel arose after the offence of refusal had occurred and after the investigation with respect to that offence had been complete. The purpose of obtaining advice is to assist in the decision whether to provide a sample. At the police station, the decision had already been made and the offence of refusal had occurred. The investigation had been complete. Any advice offered by legal counsel at that point could not have assisted the accused with respect to the decision to provide a breath sample. [ 39 ] In any event, I find that Cst.

McAvoy satisfied his informational and implementational obligations with respect to Mr. Tesser’s right to counsel at the police station. [ 40 ] According to Cst. McAvoy, at the time of arrest he read to Mr. Tesser his right to counsel and the standard police warning. At detention, Mr. Tesser was taken to a phone room and told that he could look at the phone book which was there. His options were explained to him. Cst. McAvoy asked if he had a lawyer. Mr. Tesser replied he did not know or have a lawyer. He was also told he could call Legal Aid. Mr. Tesser took the phone book and selected a law firm.

The officer dialled the phone number and received the firm’s answering machine. No office hours were indicated on the firm’s message. Mr. Tesser wished to leave a message and the officer did so, by leaving his name, the time of the call and a call back number. Mr. Tesser did not wish to call any other phone numbers.

Given the time of day, he believed this to be a waste of time, because he was not provided with the private phone number of a lawyer whom he could reach at home. [ 41 ] The Defence argued that in order to afford an accused his right to counsel, an officer must do what a reasonable person would do in the circumstances. Here, the officer dialled a work number in the middle of the night and did nothing to follow up. [ 42 ] The Defence relied on the decision of R. v. Brouillette , [2009] S.J. No. 678 , arguing it is on “all fours” with the case before me. With respect, I must disagree.

Brouillette did not deal with an ASD demand, but rather an intoxilyzer demand, where the right to counsel is engaged. Further, the trial judge was satisfied that the accused would have chosen to take further steps to contact his counsel of choice, when he could not be reached in the middle of the night, had he been afforded the opportunity to do so. There is no such evidence here. There is no basis upon which to conclude that if given an opportunity, Mr. Tesser would have taken further steps to reach a lawyer. He did not say so in his testimony.

He did not wish to call anyone else including Legal Aid duty counsel. And he testified that he considered it a waste of time to attempt to contact counsel in the middle of the night. I find he would not have taken further steps to reach a lawyer. [ 43 ] In these circumstances, Cst. McAvoy had satisfied his informational and implementational obligations. Mr. Tesser had an obligation to diligently pursue his right to counsel ( R. v. Willier , 2010 SCC 37 , para. 33 ). And, the officer was entitled to rely on Mr. Tesser’s decision not to pursue it further ( R. v.

Edgington , 2010 SKQB 381 , para. 15 ) (cited with approval by the Saskatchewan Court of Appeal in R. v. McLeod , [2013] S.J. No. 117 ). [ 44 ] I find there was no breach of Mr. Tesser’s s. 10(

b) Charter right. In these circumstances, the accused was not entitled to the right to counsel at the roadside at the time of demand. At detention, the officer fulfilled his informational and implementational obligations to satisfy the accused’s right to counsel. Even had he not done so, any breach would not have been connected to his refusal. Therefore the exclusion of evidence of his refusal would be disproportionate.

6. Was there a breach of the accused ’ s s. 9 Charter right to be free from arbitrary detention and if so, what is the appropriate remedy? [ 45 ] The accused was initially detained as the result of a lawful traffic stop arising from an expired vehicle registration. The officer observed the odour of alcohol and further detained the accused in regard to an impaired driving investigation. The officer formed a reasonable suspicion that the accused had alcohol in his body and made a proper demand, forthwith.

The detention was not arbitrary to this point. [ 46 ] The accused alleges that his s. 9 Charter right to be free from arbitrary detention was breached during his confinement at the police station. [ 47 ] Cst. McAvoy testified that he and Mr. Tesser arrived at the police station at approximately 3:00 a.m. After being booked, the accused was placed in the phone room. At 3:20 a.m., he left a message on the answering machine of a law firm selected by the accused. After that, Mr. Tesser attempted, unsuccessfully, to contact Mr. Likness by phone. [ 48 ] Sgt.

Meckelborg testified that he came on duty as the officer in charge in detention at 5:30 a.m. on August 21, and, as he put it, “adopted” the accused who was still detained. According to Sgt. Meckelborg, as officer in charge, Acting Sgt. Berg, who did not testify, made the initial decision to detain Mr. Tesser, bring him before a justice of the peace and to request the posting of bail. [ 49 ] Sgt. Meckelborg acknowledged that as an officer in charge he could have released Mr. Tesser. He did not do so because Mr. Tesser was from out of province.

The officer believed his release ought to be dealt with by someone at a higher level, such as a justice of the peace or a judge and the time for Court was approaching. The officer intended to ask for Mr. Tesser’s release, with a maximum $500.00 surety. Sgt. Meckelborg testified that they attended to Mr. Tesser quickly; his focus was on preparing Mr. Tesser to appear before the justice of the peace and to assist him in ensuring he could arrange for a surety. Sgt. Meckelborg did not make any further assessment with respect to Mr. Tesser’s sobriety or ability to be released earlier. [ 50 ] Sgt.

Meckelborg testified that at approximately 6:00 a.m., Mr. Tesser’s fingerprints were taken by the Identification Unit. He was then allowed to call Mr. Likness at 7:30 a.m. and made a further attempt to reach Mr. Likness at 9:00 a.m. At 9:06 a.m., Mr. Tesser asked to speak to Legal Aid duty counsel and was allowed to do so. [ 51 ] Sgt. Meckelborg could not say with certainty when Mr. Tesser went before the justice of the peace. Typically, detainees are taken before a justice of the peace between 10:30 a.m. and 11:00 a.m. on the weekends.

The order in which detainees are taken before the justice depends upon the population in detention at the time. Usually, youths are dealt with first, followed by those individuals for whom the officers are requesting release. The paperwork takes approximately one and one-half hours. Some days, the entire process can take until 3:00 p.m. or 4:00 p.m. [ 52 ] Mr. Tesser testified that following his attempt to contact a lawyer, he unsuccessfully tried to reach Mr. Likness. He was then placed in a cell. Initially, he was given a sponge mat saturated with fluid. Mr.

Tesser testified that an officer stated to him “if you’re not a jerk you’ll get a pillow and blanket like everyone else”, but that never happened. Later, when he was taken from his cell, upon his return the mat had been changed. Although other inmates appeared to receive coffee and bagels, Mr. Tesser received no food or drink during his time in custody. [ 53 ] He acknowledges he was asked throughout the night if he had someone to post bail for him and was allowed to make calls. According to Mr. Tesser, he heard from Mr. Likness at approximately 7:30 a.m.; Mr. Likness recalled hearing from Mr.

Tesser around that time. Mr. Likness testified that he went to the police station at approximately 10:00 a.m. with $500.00 cash bail. Mr. Tesser was released by Sgt. Meckelborg at 12:50 p.m. on August 21, 2011, when his bail was posted. [ 54 ] The Defence argues that Mr. Tesser could have been released earlier, even with the posting of bail, by the officer in charge and that his ongoing detention was arbitrary, contrary to s. 9 of the Charter . The Defence seeks a judicial stay of proceedings or some

other remedy under s. 24(1) of the Charter. [55] The Defence relies on R. v. Bellusci, 2012 SCC 44 , [2012] 2 S.C.R. 509, wherein a prisoner was charged withassault causing bodily harm, assault of a peace officer and intimidating a justice system participant after an altercation with a prisonguard.

The trial judge acquitted the accused of both assaults and entered a stay of proceedings on the charge of intimidating a justicesystem participant on the grounds that the accused’s rights under s. 7 of the Charter had been violated. [56] The state conduct in Bellusci included the prison guard recklessly provoking the accused, grievously assaulting him while hewas chained, shackled, handcuffed and defenceless, while in the prison guard’s custody (para. 5).

Most troubling, the guard disclosed toother prisoners that the accused was a sexual offender, thereby jeopardizing his personal safety while imprisoned (para. 23). [57] Accordingly, the trial judge felt that the Charter breach fell within the “residual” and “exceptional” category of cases wherethe misconduct was so egregious that merely proceeding with the matter would be offensive. The trial judge applied the reasoning inCanada v.

Tobiass, (SCC), [1997] 3 S.C.R. 391 at para. 96, that “if a past abuse were serious enough, then publicconfidence in the administration of justice could be so undermined that the mere act of carrying forward in light of it would constitute anew and ongoing abuse sufficient to warrant a stay of proceedings”. [58] The Supreme Court in Bellusci chose not to interfere with the trial judge’s determination. According to Fish J., s. 24(1) of theCharter vests in trial judges broad discretion in granting “such remedy as the court considers appropriate and just in all of thecircumstances”.

Remedies granted by a trial judge under s. 24(1) should be disturbed on appeal only where judges misdirect themselvesor their decision is so clearly wrong as to amount to an injustice. [59] According to Fish J. the trial judge concluded that this was “a case of unlawful extrajudicial punishment that would shock thepublic” (para. 22). The trial judge carefully considered the correct principles and therefore the Supreme Court chose not to interferewith his decision. [60] The Defence also relies on an unreported decision in R. v.

Solic (October 6, 2009) where the Saskatchewan Provincial Courtfound that the holding of the accused in detention for 11 ½ hours “without a true reason” was egregious and entered a stay ofproceedings. In the present case, there was a reason for the ongoing detention of Mr. Tesser. He was being held with the intention ofplacing him before a justice of the peace to secure his release upon the posting of a cash bail because he was from out of province. [61] The Crown relies on the case of R. v. Rice, [2011] S.J. No. 743 (Sask.

Q.B.), wherein the appeal court upheld the trial judge’sfinding that the accused’s s. 9 Charter rights were not breached, where she was held for ten hours in police cells possibly without ablanket after providing breath samples. She had not been mistreated during her period in custody other than being held longer than sheshould have been. The trial judge concluded her continued detention was likely caused by the negligence of the police rather than maliceor improper motive.

Further, there was no evidence before the Court of any systemic defect in the police service procedure. [62] In Rice the appeal court relied on Gerein J.’s decision in Salisbury, that where arbitrary detention occurs after the commissionof the offence and after the investigation has been completed, and there is no connection between a breach of s. 9 of the Charter and thecharges, a stay of proceedings would be disproportionate to the violation of the Charter.

On appeal the Saskatchewan Court of Appeal(at 2012 SKCA 159) agreed that the stay of proceedings was disproportionate in the circumstances of that case where the accused wasdetained in police cells for 9 ½ hours after providing breath samples. The Court of Appeal confirmed that a judicial stay of proceedingsas a remedy for a Charter breach is an exceptional remedy to be used only in the clearest of cases (para. 10) (see also R. v. Mahal, 2012SKPC 157; R. v. Hall, 2012 SKQB 233). [63] In these circumstances, I find that Mr. Tesser was not arbitrarily detained contrary to s. 9 of the Charter.

His detention was inlarge part the result of the perceived need by the officers in charge to have him released by a justice of the peace on the posting of bailbecause he was from out of province. There was no evidence of malice or bad faith on the part of the officers. Neither was thereevidence of a systemic defect. Mr. Tesser was not provided with a blanket or pillow or any food during his detention, and while he mayhave been uncomfortable, there is no evidence of mistreatment. Further, some of the delay in his release can be attributed to thearranging of his cash bail.

[ 64 ] However, had I found that he had been arbitrarily detained, I would not have granted a judicial stay of proceedings. The circumstances of this case do not fall within the residual or exceptional category of egregious state conduct as in Bellusci . Neither is this the clearest of cases. Following the reasoning of Gerein J. in Salisbury , there is no connection between the detention of Mr.

Tesser for approximately nine hours and the commission of the offence of refusal at the roadside. [ 65 ] Neither would the reduction of sentence be an appropriate remedy, given the minimum sentences required for offences of this nature ( R. v. Nasogaluak , [2012] 1 S.C.R. 206 ). Mr. Tesser’s remedy would perhaps lie in the civil courts. Conclusion [ 66 ] I have found there was no breach of Mr. Tesser’s Charter rights.

Further, I have found that the Crown has proven beyond a reasonable doubt the offence of refusal contrary to s. 254(5) of the Criminal Code and I therefore find him guilty. __________________________ D.C. Scott, J