Her Majesty the Queen - v. -, 2017 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 020 Date: February 24, 2017 Information: 44667873 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Troy William Webb Appearing: R. Wempe For the Crown B. Mitchell and R. Hunter For the Accused JUDGMENT R.D. JACKSON , J I. INTRODUCTION [ 1 ] The accused was charged on August 20, 2016 at Saskatoon with assault upon Matthew Hartley (an off-duty Saskatoon Police constable) as well as impaired driving and drive while over .08.

[ 2 ] The charge of assault was stayed at trial. [ 3 ] The matter proceeded by way of a blended voir dire and trial. The Crown called Constable Hartley and the two investigating officers, Constable Kyum Cho and Constable Dan Martin. The defence called no evidence on the voir dire nor the trial proper. II. ISSUES [ 4 ] The defence raised the following issues for adjudication:

a) that Constable Cho lacked sufficient grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code , thereby breaching ss. 8 and 9 of the Charter ;

b) that the accused was detained by Constable Hartley without lawful authority, and thus arbitrarily, contrary to s. 9 of the Charter ;

c) that Constable Hartley did not advise the accused as to the reason for his detention nor his right to contact legal counsel, in accordance with ss. 10(

a) and (

b) of the Charter , respectively;

d) that the Certificate of Analyses should be excluded from the evidence by reason of the breaches, pursuant to s. 24(2) of the Charter ; and

e) that the Crown has not proven beyond a reasonable doubt that the accused’s ability to operate his motor vehicle was impaired by alcohol. III. BACKGROUND Constable Hartley [ 5 ] The incidents unfolded on Saturday, August 20, 2016 in Saskatoon, shortly after 7:30 p.m., described as a warm and pleasant summer evening. [ 6 ] Constable Hartley, a Saskatoon Police Service constable, was on the way home after completing his 7 a.m. to 7 p.m. day shift. He was dressed in civilian attire consisting of t-shirt (emblazoned with the tourist logo NYPD), track pants and runners.

He wore no Saskatoon Police Service insignia or equipment and was operating his personal vehicle, a 2005 Saturn Ion sedan. [ 7 ] While crossing the Circle Drive bridge southbound, he noticed a red F-150 Ford truck ahead driving at roughly 60 kph in what he knew to be a 90 kph speed zone. [ 8 ] Constable Hartley slowed to match the speed of the truck, a function no doubt of his police training and background.

As he followed the truck over the bridge, he observed it to weave twice to the right, nearly striking the guard rail at one point. [ 9 ] Suspecting the operator to be impaired, he pulled abreast of the driver’s door at which point he could see the driver leaning

forward over the steering wheel appearing to concentrate on his driving. When eye contact was made, Constable Hartley could ascertain what he perceived to be relaxed facial muscles and droopy eyes. In his experience dealing with hundreds of impaired drivers, these were complementary signs of alcohol impairment to the driving he was witnessing. [ 10 ] He then pulled in behind the truck, following it onto an exit ramp, which gave the option of making a turn to the left to go east on Attridge Drive or right to proceed westbound.

The truck initially appeared to be going right and then abruptly chose the left fork up onto Attridge Drive going east. [ 11 ] By this point, Constable Hartley had called Saskatoon Police Service 911 dispatch to report the driving. He was informed that no available units were in the vicinity at the time. He then asked if he should continue following the vehicle and was advised not to by the dispatcher. He did not identify that he was, in fact, an off-duty police officer. [ 12 ] Constable Hartley decided, nonetheless, to continue following as this was his direction home as well.

When he came onto Attridge Drive, he observed the subject truck ahead straddling two driving lanes. He then witnessed the truck go on top of the centre median with two wheels and further along, to strike the centre median with two wheels as it approached the Central Avenue intersection. [ 13 ] Once at the intersection, the truck turned left onto Central Avenue across the path of a southbound vehicle which narrowly missed “t-boning” him.

Constable Hartley now believed the driving to be so egregious that he had to stop the truck before someone was seriously hurt or killed, so he drove in behind honking and waving for the driver to pull over. [ 14 ] The truck turned right onto Konihowski Road coming to a stop in the park lane. Constable Hartley came alongside and each driver lowered their windows to accommodate conversation. Constable Hartley nudged forward slightly angling to prevent the truck from proceeding. [ 15 ] Constable Hartley yelled at the driver words to the effect “you’re drunk - park and walk home” and “the police are on the way”.

At this point, the driver turned right over the curb and onto the grass and sidewalk to avoid the Hartley vehicle and sped off at roughly 65 - 70 kph. [ 16 ] Constable Hartley was concerned for several people out walking in the area, one in particular pushing a stroller and another who had run across the road as the truck approached. [ 17 ] He followed the truck, which turned right onto Laycoe Crescent, where he observed several adults and children in the vicinity. He pulled ahead and blocked the truck from going further.

At this point, both drivers exited their vehicles and a confrontation ensued. [ 18 ] Constable Hartley recalls the driver (who he identified as the accused) shouting “what’s your probrem?” - slurring and mispronouncing “problem” to which he responded “you’re drunk and going to kill someone”. Constable Hartley then reached for the keys at which point the driver punched him in the right side of the face. Constable Hartley responded by grabbing his collar and pulling him to the ground, retrieving his keys and placing them in his pocket. The driver arose and walked toward him with fists clenched.

Constable Hartley attempted to warn him off unsuccessfully, and then struck a blow to his face knocking him to the pavement. He told him to stay put as a resident had advised that police had been called. [ 19 ] At no time throughout the entire episode did Constable Hartley identify to the accused as a police officer. Consequently, he did not provide the standard rights and warnings as he was relying only on common law powers of arrest under s. 494 of the Criminal Code [1] , he testified.

He acknowledged that he would have restrained the accused from leaving had he tried to do so. [ 20 ] Constable Hartley stated further that when the two combatants were in close proximity to one another, he was able to detect the odour of alcohol on his breath, red glassy eyes and unsteadiness on his feet.

[ 21 ] A patrol unit arrived within minutes and Constable Hartley related the entirety of his involvement to the investigating officer, Constable Kyum Cho. This encompassed all of the driving evidence, the driver’s physical appearance including red watery eyes, smell of alcohol on his breath and his slurred speech. When pressed in cross-examination about whether he simply advised Constable Cho about the driving, Constable Hartley was firm that he told him the totality of what he had observed. [ 22 ] Constable Hartley then continued home where he wrote a statement in detail about the incident.

This was subsequently collected by another officer roughly 45 minutes later and thereafter delivered to Constable Cho at the detachment. Constable Cho [ 23 ] Constable Cho, a rookie officer of approximately three months experience, testified that he spoke to Constable Hartley for several minutes at the scene. He was not initially aware that Constable Hartley was a fellow officer until advised of this by his partner, Constable Martin. [ 24 ] Constable Cho stated that Constable Hartley informed him in detail as to what he had witnessed regarding the driving and physical signs of impairment.

In his evidence, he recounted in very similar detail the testimony of Constable Hartley, as to the nature of the driving and specifics of the face to face encounter between Constable Hartley and Mr. Webb. [ 25 ] Defence counsel vigorously challenged Constable Cho as to whether Constable Hartley had actually told him these details at scene, or conversely, whether this accounting came from Constable Hartley’s written report brought to him at the detachment.

These questions were predicated upon the fact that Constable Cho’s notes were scant and only fleshed out in his General Occurrence Report on the incident. [ 26 ] Constable Cho strongly refuted this, testifying that he was told the entirety of Constable Hartley’s involvement at scene. This was in fact corroborated by both Constable Hartley and Constable Martin in their evidence. Accordingly, any issue of reliability relating to the dearth of notes taken by Constable Cho at the time has been addressed.

The Court is satisfied that Constable Hartley did indeed advise Constable Cho in detail as to what had transpired throughout, notwithstanding that he did not make notes at the scene to reflect this. [ 27 ] Constable Cho and Constable Martin escorted Mr. Webb to their patrol car where Mr. Webb was formally charged with impaired driving and over .08 (as well as assault which was subsequently dropped). He was then transported to the detachment for Intoxilyzer samples to be taken. Mr.

Webb was given the opportunity to speak to Legal Aid duty counsel and thereafter provided two samples of breath being 140 and 130 milligrams, respectively (Exhibit P-2). Constable Dan Martin [ 28 ] Constable Martin was partnered with Constable Cho on this evening in the capacity of Field Trainer, whose function was principally to supervise Constable Cho, letting him take the investigating lead to gain experience. [ 29 ] As such, Constable Martin did not have a material role in dealing with the accused. He did observe Mr. Webb to be sitting on the grass and detected him to slur a little when he spoke.

He also witnessed Constable Cho and Constable Hartley to have a four to five minute conversation, portions of which he made out regarding following the accused, honking at him to stop, being punched in the face and retrieving his keys. [ 30 ] He also recalled that the accused had a very wide stance when he walked to the patrol car and overheard him say that he had two to three beer.

IV. DETERMINATION

a) that Constable Cho lacked sufficient grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code , thereby breaching ss. 8 and 9 of the Charter ; [ 31 ] The Court has accepted that prior to the breath demand, Constable Hartley imparted all of his observations to Constable Cho regarding the accused, summarised as follows:

a) travelling 60 kph in a 90 kph zone;

b) weaving on two occasions to the right on the freeway bridge, nearly striking the guard rail at one point;

c) straddling two driving lanes on Attridge Drive;

d) driving up onto the centre median on Attridge with two wheels;

e) striking the centre median with two wheels further along Attridge, when approaching Central Avenue;

f) pulling out across the path of an oncoming vehicle on Central Avenue, nearly causing a collision;

g) driving up over the curb and sidewalk on Konihowski Road;

h) speeding away at 65 - 70 kph in a residential area where people were walking about;

I) red, glassy eyes;

j) smell of alcohol on breath;

k) combative and belligerent;

l) striking Constable Hartley in the face when he attempted to take his keys;

m) flaccid facial muscles; and

n) slurred speech. [ 32 ] Additionally, Constable Cho testified that he personally observed the following at scene:

a) glassy eyes;

b) smell of alcohol on breath;

c) slight slurring of words;

d) unsteadiness on his feet; and

e) admission that he had consumed two or three beer. [ 33 ] In all the circumstances, the evidence is overwhelming that Constable Cho subjectively believed the accused’s ability to operate a motor vehicle was impaired by alcohol and that such belief was objectively reasonable in the circumstances. [ 34 ] As reasonable and probable grounds existed to make the breath demand, the argument relating to breaches of ss. 8 and 9, regarding Constable Cho’s involvement, must fail.

b) that the accused was detained by Constable Hartley without lawful authority and thus arbitrarily, contrary to s. 9 of the Charter ; [ 35 ] On the evidence presented, Constable Hartley acted at all times throughout in the capacity of a private citizen vis-à-vis his dealings with the accused, relying upon the common law powers of arrest pursuant to s. 494(1) of the Criminal Code , supra .

Such powers confer upon any citizen (including an off-duty policeman), the ability to arrest without warrant anyone found committing an indictable offence. [ 36 ] An almost identical circumstance was discussed by Turpel-Lafond, J in R v Scharf [2] , at para 26 : The Court is of the view that the arrest itself was lawful. Constable Hoover was concerned about the potential for an accident based on the driving he witnessed. He wanted to stop the accused from continuing to operate his vehicle out of concern for the public.

Either as a police officer, or as an ordinary citizen, the power to arrest someone who is believed to be committing an offence, such as that of impaired driving, is recognized in the Criminal Code , in sections 494 and 495 . Although Constable Hoover was off-duty at the time, clearly his experience for thirteen years as a police officer encouraged a sense of duty to the public to protect them.

For this reason he decided to follow the vehicle, telephone the RCMP to notify them of an offence in progress, and make an attempt to stop him. [ 37 ] Although Constable Hartley at no time purported to put the accused under arrest, he candidly admitted that he was detaining him until the police arrived and would have prevented him from leaving had he attempted to do so. Detention in such circumstances would amount to a common law arrest, without anything further being said or done.

Having witnessed the erratic driving and subsequently ascertaining that the driver displayed physical signs of alcohol impairment, the common law arrest pursuant to s. 494(1)(

a) was both justified and lawful, and therefore not arbitrary. [ 38 ] Further, if one were to take the broader view, as alluded to by defence counsel, that Constable Hartley was a police officer at all times, whether off or on duty, his powers of arrest would only be enhanced, and his ability to arrest and detain, increased accordingly.

c) that Constable Hartley did not advise the accused as to the reason for his detention nor his right to contact legal counsel, in accordance with ss. 10(

a) and (

b) of the Charter respectively; [ 39 ] Constable Hartley testified that he neither placed the accused under arrest nor provided any of the standard rights and warnings to the accused, because he was not acting in his capacity as a police officer when dealing with him.

[ 40 ] The fact that Constable Hartley never identified at any point to the accused as a police officer is novel, if not somewhat curious. In the decisions cited regarding actions of off-duty police officers effecting arrests, in every case the off-duty officer did so identify. [3] [ 41 ] This begs the question whether an officer must do so or not. The Court is unable to find any authority compelling such disclosure, if he or she so chooses, but the officer would then be restricted to powers of common law arrest, as discussed above.

Although unusual, there may be valid reasons to not declare police officer status such as lack of back-up, badge, firearm, restraint devices and so on. In such instances, it may well be prudent to do as much as reasonably possible as a citizen and leave the formal arrest process to on duty personnel. [ 42 ] Tomkins, J. in R v Kelln , supra , lends support to this conclusion at paras 31 - 33, 36: [31] Mr. Kelln argued that as Sgt. Yum is a member of the Regina Police Service, was known as such by Mr.

Kelln and acted in the manner of a police officer, he carried all of the obligations of a police officer in his dealings with Mr. Kelln. Being a police officer, Sgt. Yum is always a police officer and that once this incident occurred, his words and actions ought to be assessed and analyzed on that basis. [32] I do not agree with these submissions. [33] Sgt. Yum, in his civilian capacity, was working in his yard when his car was struck by a neighbour. As would any civilian, he looked at the damage to the vehicle and then spoke to the man who hit it. During that conversation, in describing his actions, Mr.

Kelln volunteered that he had consumed alcohol within a brief time before the accident. This caused Sgt. Yum to wonder if alcohol might have been a factor in the accident. He asked, as would be ( sic ) anyone in such circumstances, how many drinks Mr. Kelln had consumed. Mr. Kelln answered. Sgt. Yum said they'd have to report the accident and said, in effect, "We'll go to my house and I'll call the police." He did. . . . [36] Most telling, however, is that Sgt. Yum told Mr. Kelln that they would have to call the police.

If he intended to and thought he had to call the police, it is apparent to me and would have been apparent to Mr. Kelln that Sgt. Yum was not acting in his capacity as a police officer during their interaction. If he was the police, he would not need to call the police. [ 43 ] This was precisely how Constable Hartley interacted in the present case. He continually demonstrated throughout that he was not acting in any official role and deferred any such authority to the on-duty officers. [ 44 ] As a private citizen, Constable Hartley had no right or obligation to comply with ss. 10(

a) and (

b) of the Charter. Advising the accused in any event as to why he was being detained would have been unnecessary, being obvious in the circumstances. As to his right to counsel, as indicated, this would not have triggered unless Constable Hartley made it known to the accused that he was a police officer and acting in the capacity of such.

d) that the Certificate of Analyses should be excluded from the evidence by reason of the breaches, pursuant to s. 24(2) of the Charter ; [ 45 ] If the Court is in error on its determination that Charter breaches have not been established, the remedy of exclusion of evidence pursuant to s. 24(2) would not have been warranted on the facts before the Court, having due regard to the Grant [4] analysis. To do so, in the Court’s view, would bring the administration of justice into disrepute.

e) that the Crown has not proven beyond a reasonable doubt that the accused ’s ability to operate his motor vehicle was impaired by alcohol.

[46] As set out in paragraph 31, above, the uncontradicted evidence of Constable Hartley demonstrated an extended pattern ofegregious and dangerous driving. The accused’s physical signs of impairment, including red glassy eyes, slurred speech, smell of alcoholon his breath, and unsteadiness on his feet, were corroborated by all three Crown witnesses. Accordingly, there is absolutely no doubtthat the accused’s ability to operate his motor vehicle was impaired by alcohol throughout the entire incident. V.

CONCLUSION [47] On the evidence, the accused is found guilty on both counts of impaired driving and drive while over .08, respectively. TheCourt will seek directions from the Crown as to which count shall enter as a conviction and the other count shall be judicially stayed,pending outcome of any appeal period. ____________________ R.D. Jackson, J [1] Arrest without warrant by any person 494

(1) Any one may arrest without warrant (

a) a person whom he finds committing an indictable offence; [2] 2003 SKPC 181 [3] See R v Scharf, supra; R v Reddy 2007 BCPC 384; R v Laing 2006 ABPC 273; R v Crimeni 1992 Carswell BC 452; R vKelln 2015 SKPC 9 , 2015 SKPC 09. [4] (2009), 2009 SCC 32 , 245 CCC (3d) 1 (SCC)