Her Majesty the Queen - v. -, 2013 SKPC 112

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 112 Date: July 11, 2013 Information: 24484204 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wanda Deschambault Appearing: William Jennings For the Crown Neil Halford For the Accused JUDGMENT B. TOMKINS , J [ 1 ] Wanda Deschambault is charged that on July 28, 2012 at Lebret, Saskatchewan, she: while her ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to section 253(1) (

a) and 255(1) of the Criminal Code ; and having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 531(1) (

b) and 255(1) of the Criminal Code .

THE EVIDENCE [ 2 ] On July 28, 2012, at about 5:00 p.m., Tina Coulombe was working on the deck of the service club which she operated. The sound of a speeding vehicle caught her attention. She looked and saw a truck coming down the road. It attempted a turn but struck a monument located near the turn. Someone got out of the vehicle, looked at the damage and then got back into the vehicle. The driver took about five minutes to extricate the vehicle and then turned behind Penny Norton's residence. [ 3 ] About 15 minutes later, Ms. Coulombe called the local RCMP to report what she had seen.

She said she called because she was concerned about what might be the extent of the damage to the monument and whether the town would have funds for the repair. [ 4 ] Ms. Coulombe testified that the vehicle she saw was a truck that appeared white or silverish in colour, depending on the light. She said the truck was "loaded in the back". [ 5 ] Ms. Coulombe said she could not say whether there were others in the truck cab but she could see that a woman was driving.

Also, she said, it was a woman who got out to inspect the damage after the accident occurred. [ 6 ] Deborah Norton had been home all day on July 28, 2012. She had three visitors that day, including the Accused. She said Ms. Deschambault came to her home twice that day. [ 7 ] On the first visit, Ms. Deschambault came in a black car. She stayed 20 to 30 minutes on that occasion. Ms. Norton said she thought Ms. Deschambault was intoxicated, although she did not indicate what she observed that drew her to this conclusion. She did say that she did not know Ms.

Deschambault well but could tell that "she'd had a few". [ 8 ] Ms. Norton did not say and was not asked what time this first visit occurred. [ 9 ] On the second occasion, Ms. Deschambault arrived about supper time and stayed 20 to 30 minutes or 15 to 20 minutes; she was uncertain. She said Ms. Deschambault came in a brown truck that had "a bunch of stuff in the back". She did not see the truck arrive or leave but did see it parked in her yard while Ms. Deschambault was there. [ 10 ] Ms. Norton did not indicate and was not asked what time the second visit occurred, beyond saying it was near supper time.

She also said that the RCMP came to her house between 6:00 and 7:00 p.m. and that this was after supper. [ 11 ] Constable Marcus Crocker is an RCMP member who was dispatched on receiving a call that a loaded silver truck had struck the monument in Lebret. He left Fort Qu'Appelle in company with Cst. Duvall and when they arrived in Lebret, drove to Penny Norton's home. En route to the house, they observed damage to the monument and then went to the back of the Norton residence. He said Penny Norton advised him that Wanda Deschambault had been there in a truck and seemed impaired. [ 12 ] Csts.

Crocker and Duvall then went to where Ms. Deschambault lived. Nearby, he saw a truck that generally matched the description he'd been given. It was not running, the doors were closed and there was no one inside. There was a car in front of the truck and a woman was leaning into the passenger seat of the car. It was Wanda Deschambault. [ 13 ] Cst. Crocker asked her name and she responded with slurred speech. As he got closer, Cst. Crocker noticed an odour of alcohol coming from Ms. Deschambault. On their walk to the police car, he observed Ms. Deschambault to be "wobbly" and not walking straight.

He said she was "uneasy on her feet". [ 14 ] Based on his observations of Ms. Deschambault and what he had been told by Ms. Norton, Cst. Crocker formed the opinion that Ms. Deschambault was impaired and that she had operated a vehicle while in that condition. He arrested Ms. Deschambault for

impaired driving and leaving the scene of an accident. He read her her Charter rights and warning at 5:30 p.m. She said she understood both and that she did not want to call a lawyer. Cst. Crocker then, at 5:32 p.m., made a breathalyzer demand which Ms. Deschambault also said she understood. [ 15 ] Ms. Deschambault and Cst. Crocker had a conversation in the police vehicle. During this conversation, Ms. Deschambault admitted to drinking six beer with the first being consumed at 11:00 a.m. and the last at 2:00 p.m. She said she had gone to Ms. Norton's to drop off a boat and motor at Ms.

Norton's and that she was alone in the vehicle when she did this. [ 16 ] Cst. Duvall testified that he and Cst. Crocker were dispatched between 5:00 and 5:10 p.m. and arrived a few minutes after 5:20. Near the truck and car, he directed traffic because the truck was blocking the street. He also took photographs of the truck, damage to the truck and the damage to the monument. [ 17 ] A tow truck was called and another RCMP officer arrived. After this, Ms. Deschambault was taken to the detachment. [ 18 ] At some point after Ms. Deschambault arrived at the detachment, she was "wanded".

Similar to airport security, a metal- detecting wand was "traced" around her body. Nothing of concern was detected. [ 19 ] Ms. Deschambault gave two samples of her breath without incident at 6:16 and 6:37 p.m. Both were in excess of .08 milligrams percent. [ 20 ] After the samples were given, Cst. Crocker escorted Ms. Deschambault to a cell. She did not wish to go. She had a cut on her foot and wanted to go to the hospital instead. Cst. Crocker inspected the cut and observed that the blood had dried; Ms. Deschambault advised it had happened about twelve hours prior. Cst.

Crocker did not believe that the cut required urgent medical attention but instead, the medical kit was retrieved and first aid was offered. Ms. Deschambault declined this offer of help, preferring to be seen at the hospital. [ 21 ] Cst. Crocker continued the process to place Ms. Deschambault in cells. He told her that her bra would have to be removed when she was lodged in cells. She would be placed alone in her cell, the door would be closed and she would be allowed to remove the bra herself. Almost immediately, Ms. Deschambault became argumentative.

She said she would not remove her bra and asked for a female RCMP member. Cst. Crocker told her no female officers were then on duty or available. [ 22 ] Cst. Crocker explained that urgent matters required his attention and he encouraged her to comply with his request but she refused again. [ 23 ] Cst. Zirie, the breathalyzer technician, heard their raised voices and went to them. He also cautioned Ms. Deschambault that they would remove her bra if she did not. He encouraged her to do it herself but she again refused. [ 24 ] Eventually, Ms.

Deschambault stood with her arms out and said words to the effect of "Go ahead and do it." They were in the cell by this time. [ 25 ] Cst. Crocker held Ms. Deschambault's arms behind her back and Cst. Zirie unclasped her bra by reaching under her shirt. Cst. Crocker used his left hand, while continuing to hold Ms. Deschambault's arms with his right, to slide the strap off her left arm. He was about to attend to the right strap when Ms. Deschambault turned and lunged at Cst. Zirie. She scratched his arm. [ 26 ] Cst. Crocker and Cst. Zirie took Ms.

Deschambault to the floor of the cell and completed removal of her bra. While they did so, Ms. Deschambault called out repeatedly "You can't do this" and "You can't do this to me." Afterwards, Ms. Deschambault was on the bench in her cell, yelling and screaming. By the time the officers left the cell, Ms. Deschambault was kneeling against the bench crying. [ 27 ] Within minutes or less, Cst. Crocker learned that "something was happening with Wanda". He returned to her cell and found

that Ms. Deschambault had wrapped her shirt around her neck and was twisting it. He entered the cell and removed her shirt from around her neck. Her face was red and she gasped for air when Cst. Crocker removed the shirt. Ms. Deschambault's skirt and shirt were removed from the cell, as was the blanket she had been provided. At 6:44 p.m., she was left in the cell wearing only her underpants. [ 28 ] The video shows that after Cst. Crocker did this, Ms. Deschambault shifted positions from laying on her side to sitting and then she laid down and placed a mat over herself.

At 7:02 p.m., an officer entered the cell and removed the mat. [ 29 ] Cst. Crocker left to attend to a call respecting a drowning and did not see Ms. Deschambault until the following morning when he served the Certificate of Analyses. He found her demeanour to be appropriate and cooperative. By then, she was wearing a paper one-piece suit. [ 30 ] Video recordings of both Ms. Deschambault's time at the detachment before the breathalyzer tests were administered and the events in cells after the tests were viewed and filed as exhibits in the proceedings. ISSUES [ 31 ] Arising from this evidence, Ms.

Deschambault has argued that the requirement that she remove her bra and the forced removal of it constitute an unlawful search contrary to

section 8 of the Charter of Rights and Freedoms . She has applied for a judicial stay of both counts. [ 32 ] In the alternative, Ms. Deschambault argued that none of the witnesses observed her to operate a motor vehicle and none identified her as the driver and that, as such, neither charge has been proven beyond a reasonable doubt. CHARTER ISSUES [ 33 ] The Accused applied for a stay of proceedings as relief pursuant to subsection 24(1) of the Charter of Rights and Freedoms based on unlawful search. [ 34 ] The Crown takes the position first, that the matter is not properly before the Court because the Accused did not give notice to the Crown as is required by

section 13 of The Constitutional Questions Act . Failing such notice, the Crown argued, the Court cannot grant a remedy as that term is defined in that Act . [ 35 ] In the alternative, the Crown argued that neither the requirement that Ms. Deschambault remove her bra nor the forced removal of it constituted a breach of her right to be protected against unreasonable search pursuant to

section 8 of the Charter . 1. Notice [ 36 ] The relevant provisions of The Constitutional Questions Act are as follows: 12 In this Part: “court” means the Court of Appeal, the Court of Queen’s Bench, the Provincial Court of Saskatchewan or The Traffic Safety Court of Saskatchewan;

“law” includes: (

a) an enactment as defined in The

Interpretation Act, 1995 ; (

b) an enactment within the meaning of the

Interpretation Act (Canada); “remedy” means a remedy provided pursuant to

section 24 of the Canadian Charter of Rights and Freedoms but does not include a remedy of exclusion of evidence or a remedy consequential on exclusion of evidence. 13 No court shall hold any law to be invalid, inapplicable or inoperable if a constitutional question is raised nor shall it grant any remedy unless notice is served on the Attorney General of Canada and on the Attorney General for Saskatchewan in accordance with this Part. 14 If, in any court, the validity of a proclamation, regulation or order in council made or purportedly made in the execution of a power given by an Act is brought into question on grounds other than those mentioned in

section 13, the court shall not hold the proclamation, regulation or order in council to be invalid unless notice is served on the Attorney General for Saskatchewan in accordance with this Part. 15

(1) Subject to subsection (2), a notice mentioned in

section 13 or 14 must be served at least 14 days before the day of argument.

(2) The court may, on an ex parte application made for the purpose, order an abridgement of the time for service of a notice mentioned in

section 13 or 14.

(3) A notice mentioned in

section 13 or 14 must include: (

a) the name of the action, cause, matter or proceeding in which the question arises or application is made; (

b) the law or provision in question, if any; (

c) the basis for the challenge; (

d) the right or freedom alleged to be infringed or denied, if any; (

e) the day and place for the argument of the question; and (

f) the facts that will be relied on in argument.

(4) The Attorney General for Saskatchewan is entitled as of right to be heard in any action, cause, matter or proceeding to which

section 13 or 14 applies.

(5) The Attorney General of Canada is entitled as of right to be heard in any action, cause, matter or proceeding to which

section 13 applies.

(6) If the Attorney General of Canada or the Attorney General for Saskatchewan appears in an action, cause, matter or proceeding to which

section 13 or 14 applies, he or she is a party for the purposes of appeal from an adjudication respecting the validity, applicability or operability of a law or respecting entitlement to a remedy.

(7) If the Attorney General of Canada or the Attorney General for Saskatchewan is not given proper notice pursuant to

section 13 or 14 as the case may be, he or she has the right to appeal an adjudication and is a party for the purpose of an appeal. [ 37 ] The

Interpretation Act (Canada) states that enactment means "an Act or regulation or any portion of an Act or regulation". It seems to me that there is no question but that the Criminal Code , being a piece of legislation passed by the Parliament of Canada and amended from time to time, is an enactment. Indeed, neither party has argued otherwise.

[ 38 ] The Saskatchewan Court of Appeal held, in R. v. Kortje ; R. v. Langan [1] that where notice is not given, it was not open to either the chamber judge who gave the initial decision or the Court of Appeal itself to deal with the Charter argument that had been raised. [ 39 ] In R. v. Ganton [2] , a trial judge granted a remedy upon concluding that the accused's Charter rights against unreasonable search and arbitrary detention had been violated.

Upon appeal, the Court of Queen's Bench held that the remedy could not be granted due to the fact that the Accused had neglected to serve notice. [ 40 ] The issue was also considered in R. v. Bosovich . [3] Mr. Bosovich had been charged with impaired driving and refusing the breathalyzer. At trial, Mr. Bosovich argued that his right to trial within a reasonable time had been infringed. He sought a stay of proceedings pursuant to section 24(1) of the Charter . My brother judge held that as notice conforming to the Act had not been served, the remedy could not be granted. [ 41 ] Most recently, in R. v.

Nome , [4] the Court of Appeal confirmed its decision in Kortje and Langan . The Court confirmed that the requirement for notice is mandatory to an application for a stay of proceedings based on Charter breach. [ 42 ] Thus, all levels of court in this province have held that failing notice, no Court can grant a stay in respect of a Charter breach. As such and since Ms. Deschambault did not serve notice as required, I cannot grant a judicial stay even were I to conclude that her

section 8 rights against unreasonable search were breached. 2. Merits of the Charter Application [ 43 ] Because counsel did not argue the matter of notice until it was raised by the Court, because merits of the Charter application were argued in full and because the facts in this case raise an important issue, I will nonetheless give my decision on the merits of Ms. Deschambault's Charter application. [ 44 ] It is not disputed that Ms. Deschambault was required to remove her bra or have it removed before she was placed in cells.

Constable Crocker testified that every woman lodged in Fort Qu'Appelle cells is required to remove her bra. He said this was not policy but "standing operating procedure"; he said the procedure is invariably followed. [ 45 ] The reasons for the procedure, he said, are two-fold. First, safety is a consideration as a woman could harm herself with the bra itself and/or, if it is an underwire bra, by removing and using those wires to harm herself. Ultimately, a woman could use her bra to commit suicide.

Second, a bra can be used as a weapon or can conceal drugs, weapons or other contraband. [ 46 ] Constable Zirie also testified about the procedure. He said that no person in cells is allowed any item that could cause injury to themselves or others and that a bra is one of these items. He reiterated that they are removed in all cases. He said the requirement to remove one's bra parallels the requirement to surrender one's shoelaces, belt and string ties from sweat pants. [ 47 ] Cst.

Zirie said when a woman is taken into custody, she is placed in her cell alone to remove the bra and pass it to the attending officer. If a matron or a female officer is on duty, the male officer will ask them to assist. If there is no female officer or matron available, the policy is that two male officers will attend to its removal; he said this policy was followed for the protection of the male officers. [ 48 ] After a woman is lodged in cells, a matron is called. Constables Crocker and Zirie said they did not call a matron. Neither did Constable Duvall who was also involved with Ms.

Deschambault during the investigation of impaired driving. They said that usually the officer would ask one of the detachment staff to call a matron. None know whether a call for a matron was made that evening by others officers or staff or whether a matron attended.

[ 49 ] The cells are each equipped with a camera. These are monitored from a place outside the cell. The observer is a civilian and could be male. The officers did not know who monitored the cells on the evening Ms. Deschambault was lodged. [ 50 ] The Supreme Court of Canada considered the issue of strip searches of persons under arrest in R. v.

Golden . [5] The facts in that case involved a visual inspection of the accused's underwear and buttocks and shortly after, one incident where his pants and underwear were lowered as he was bent over a table and another where he was similarly exposed and laying on the floor. The latter two searches occurred in a restaurant from which the public had been excluded but where other suspects, other police officers and a restaurant employee remained. [ 51 ] In the course of their reasons, the majority concluded that what occurred in Mr. Golden's case was a strip search.

In this respect, Justices Iacobucci and Arbour, writing for the majority, said: The appellant submits that the term "strip search" is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.

This definition in essence reflects the definition of a strip search that has been adopted in various statutory materials and policy manuals in Canada and other jurisdictions. ( References omitted. ) In our view, this definition accurately captures the meaning of the term "strip search" and we adopt it for the purpose of these reasons.

This definition distinguishes strip searches from less intrusive "frisk" or "pat-down" searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee's genital or anal regions. [ 52 ] The search in this case involved the required removal and inspection of undergarments. I do not think that can be distinguished from the Supreme Court's definition encompassing the removal of clothing so as to allow a visual inspection of undergarments. For example, had the officers required Ms.

Deschambault to remove her shirt to allow the officers to inspect her bra or had they removed it, the search would be clearly included in the Supreme Court's definition. The required removal of her bra can be no different; it required the removal of the bra and a rearrangement of her shirt to enable inspection of the bra. Certainly the removal of Ms.

Deschambault’s bra by the officers meets the definition and constitutes a strip search. [ 53 ] In Golden , the Court said: While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive.

Furthermore, we believe it is important to note the submissions of the ACLC and the ALST that African Canadians and Aboriginal people are overrepresented in the criminal justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches. [ 54 ] Certainly Ms. Deschambault found the requirement invasive and disturbing. This is clear from the evidence that, until her bra was requested, she was entirely cooperative and compliant with the officers and with their requests. Something, to use Cst.

Crocker's words, "set her off". It is not difficult to conclude, especially considering that her resistance and non-compliance commenced at exactly the time the request was made, that it was the request that triggered the conduct. No other cause was suggested and none is available on the evidence before me. [ 55 ] However, whether a strip search or not, the requirement to remove her bra and the forceful removal of it constitutes a search. Ms.

Deschambault argued that the search, however classified, was not conducted on reasonable grounds and violated her Charter right to protection against unreasonable search and seizure. [ 56 ] The search in Golden took place incidental to arrest and before Mr. Golden was taken to the local detachment. The Court recognized this and wrote: It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting.

We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the

prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells. [6] (Italics mine.) [ 57 ] Warrantless searches are prima facie unreasonable under

section 8 of the Charter and the burden is on the party seeking to justify the search to prove that it was not unreasonable. However, searches incidental to arrest are an exception to this rule. The Supreme Court of Canada, again in Golden said: The fact that police have reasonable and probable grounds to carry out an arrest does not confer upon them the automatic authority to carry out a strip search, even where the strip search meets the definition of being "incident to lawful arrest" as discussed above. Rather, additional grounds pertaining to the purpose of the strip search are required.

In Cloutier , the Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself[.] ( References omitted ) However, this conclusion was reached in the context of a "frisk" search, which involved a minimal invasion of the detainee's privacy and personal integrity. In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity .

In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. [7] (Italics mine.) [ 58 ] Constable Crocker testified that, while not policy, surrender of bras is standard operating procedure. Every woman placed in cells is required to remove her bra. The officers gave three reasons for this standard procedure: 1.

The Detainee's safety : A woman might use the bra itself to commit suicide or otherwise harm herself or, if the bra is underwired, she might remove the wires and use them to harm herself. This requirement parallels, one officer testified, the requirement that people held in cells surrender their belts and shoelaces. 2. Weapons : The wire in an underwired bra might be used as a weapon against others or the woman might have weapons concealed in her bra. 3. Contraband : Contraband might be concealed in the bra. [ 59 ] Golden clearly concluded that a blanket policy for such searches will not satisfy

section 8 of the Charter . The Court said: The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter , [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27 , which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving.

Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population.

While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees. [8] [ 60 ] Thus, the "standard operating practice" at the Fort Qu'Appelle Detachment will not constitute reasonable grounds for a search of this nature.

However, any of the reasons given by the officers could provide reasonable grounds for a search requiring the surrender of a woman's bra, if circumstances of the particular woman and the particular situation provide reason to believe any or all of them might be at play. I will consider each. [ 61 ] There was nothing in the circumstances of Ms. Deschambault's arrest and her behaviour prior to the demand for her bra that suggested that she was or might be suicidal; her behaviour was appropriate and controlled prior to the request.

There is nothing in the evidence to suggest that any of the officers who dealt with her asked any questions to determine if she might be at risk of suicide or self- harm. She was not reported to have been distraught or overwrought. Indeed, Cst. Crocker testified that he did not fear that Ms. Deschambault might be suicidal and, in any event, he said there is nothing in the cell from which Ms. Deschambault could hang herself. [ 62 ] It was suggested that the fact that Ms.

Deschambault twisted her shirt around her neck after her bra was removed indicates that she was, in fact, suicidal and in this sense, the removal of the bra was justified. I do not agree. The evidence indicates that Ms.

Deschambault was not distraught until the officers requested her bra and after they took it. It is far more likely a result of those actions that Ms. Deschambault took the actions she did. [ 63 ] As to weapons, Ms. Deschambault was subjected to a "wand check" after her arrival at the detachment and before her bra was requested. Nothing of concern was disclosed by this check. [ 64 ] As to contraband, Ms. Deschambault was to be and was in fact placed in a cell by herself. There was no opportunity for her to exchange contraband.

There was no suggestion or reason to suspect, given the circumstances of her arrest and the reason for her arrest, that Ms. Deschambault might be in possession of contraband. [ 65 ] In addition, it is significant that Ms. Deschambault was under continuous video surveillance during her time in the cell. [ 66 ] I am not satisfied that there were reasonable grounds to require Ms. Deschambault to surrender her bra to the officers and I am satisfied, therefore, that her

section 8 Charter rights were infringed. The taking of the bra by force, for the same reasons, was unreasonable. [ 67 ] It is not necessary, therefore, that I consider the fact that the demand was made and maintained by male officers, even after Ms. Deschambault - reasonably in my opinion - requested the attendance of a female officer. [ 68 ] It is also not necessary that I consider the circumstances after the bra was forcefully taken when Ms. Deschambault was left crying against the bench in her cell. When she then placed her shirt around her neck, Cst.

Crocker entered the cell, removed the shirt and took it and the remainder of Ms. Deschambault's clothing save her underwear. He had no conversation with her and neither did anyone else; this suggests a lack of concern and compassion that was not explained. [ 69 ] Instead, Ms. Deschambault was left, nearly naked, distraught in the cell and when she was observed later to place a mat over herself to cover her nakedness, another officer entered and removed the mat. She was under the observation of an officer - probably male, according to Cst. Crocker – in her almost naked state.

Eventually, she was given a paper suit but the officers who testified did not know when this occurred so we do not know how long Ms. Deschambault remained under observation in this undignified, degrading and humiliating state. [ 70 ] However, because notice was not given under The Constitutional Questions Act , I cannot consider whether the breach I have found justifies a stay or other remedy under

section 24 . [ 71 ] In the alternative, Ms. Deschambault submitted that I ought to exclude the Certificate of Analyses, as exclusion of evidence is not precluded by failure to serve notice. In the latter respect, she is correct. [ 72 ] However, section 24(2) of the Charter , which allows the exclusion of evidence where the nature of the breach warrants, reads as follows:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 73 ] In this case, the actions that I have concluded constitute a Charter breach occurred after the breathalyzer tests had been taken and after the investigation of the offences with which Ms. Deschambault has been charged was concluded.

There is nothing in the breach that elicited or assisted in obtaining any of the evidence of the offence. As such, there is no evidence that can be excluded pursuant to section 24(2). [ 74 ] Therefore, Ms. Deschambault is left without a remedy for the Charter breach.

[ 75 ] It is always disappointing to determine Charter breaches after they occur as our purpose is, in large part, to bring the nature of the Charter , the rights it protects and the means of ensuring that they are protected to those in authority. [ 76 ] Nonetheless, I do hope that this incident and these reasons will result in a decision to review this "standing operating procedure" at the Fort Qu'Appelle Detachment. That procedure is followed notwithstanding the decision in Golden and many cases subsequent thereto, including cases relating to the surrender of bras and hand-searching beneath bras. [9] It is time for a fresh look. THE CHARGES [ 77 ] In very brief

summary, the evidence establishes that at about 5:00 p.m. on July 28, 2012, a woman driving a truck struck a monument in Lebret, Saskatchewan. A woman got out of the vehicle, inspected the damage, got back in the vehicle, backed it away from the monument and turned behind the Norton house. [10] Ms. Coulombe, who witnessed the accident with the monument was one-half to one block away, on the outdoor deck of the club down the street when she saw it happen. [ 78 ] There is evidence that Ms. Deschambault went to the Norton house twice on July 28, 2012.

On the first occasion, she came in a black car and stayed 20 to 30 minutes. Ms. Norton said she did not know Ms. Deschambault well but thought she was intoxicated or, at least, that "she'd had a few." On the second occasion, Ms. Norton did not see Ms. Deschambault arriving or leaving but she did see a brown truck parked behind her house while Ms. Deschambault was there and it was not there after she left. She said Ms. Deschambault stayed 15 to 30 minutes on this visit. Ms. Norton did not testify to her observations of Ms. Deschambault's state of sobriety on this visit. [ 79 ] Cst. Crocker and Cst.

Duvall responded to the call. On meeting Ms. Deschambault, Cst. Crocker observed that she smelled of beverage alcohol, slurred her words and was "uneasy on her feet." Based on information he had received from dispatch and from Ms. Norton, he concluded that Ms. Deschambault had been driving the truck that struck the monument and that her ability to drive was impaired. He placed her under arrest, read her her rights and warning and, at 5:32 p.m., made the breath demand. [ 80 ] Cst. Crocker waited at the scene with Ms. Deschambault until another officer arrived. During his time in the vehicle with Ms.

Deschambault, while they waited and en route to the detachment, she volunteered that she had consumed six beer between 11:00 a.m. and 2:00 p.m., that she had dropped off a boat and motor at Ms. Norton's and that she was alone in the vehicle when she did this. [ 81 ] Cst. Duvall was not sure but believed that there were keys in the truck's ignition. Cst. Crocker did not recall seeing keys in either vehicle and did not locate any keys in Ms. Deschambault's possession. [ 82 ] While no one is able to identify Ms.

Deschambault as the driver of the vehicle, the Crown argued that by necessary inference, I should conclude beyond a reasonable doubt that Ms. Deschambault was driving the truck that struck the monument, that she then turned into the back of the Norton house and then drove to the spot where she was found and arrested. [ 83 ] There are difficulties reconciling the timing of the various events described by the witnesses. [ 84 ] Ms. Coulombe said the accident happened at 5:00 p.m. and she called the RCMP at about 5:15 p.m. [ 85 ] However, Csts.

Crocker and Duvall testified that they were dispatched between 5:00 and 5:10 p.m., drove six or seven kilometres from Fort Qu’Appelle to the scene in Lebret, viewed the damage to the monument, spoke to Ms. Norton, then located Ms. Deschambault and placed her under arrest at 5:23 or 5:24 p.m. [ 86 ] Neither testified as to the time each of these actions took, but if Cst. Crocker's times are correct, I must assume that events occurred earlier than Ms. Coulombe testified. It is difficult to accept that in the space of eight minutes, he drove from Fort Qu'Appelle to Lebret, interviewed Ms. Norton, drove to Ms.

Deschambault, spoke to her and arrested her. This would be the time available if Ms. Coulombe is correct that she called the RCMP at about 5:15 p.m.

[ 87 ] However, if the officers were dispatched nearer to 5:00 p.m., there would be time to complete the activities they describe. [ 88 ] Like Cst. Crocker, Cst. Duvall testified that they were dispatched between 5:00 and 5:10 p.m. However, he said they did not arrive until "a few minutes past 5:20." While this timing would align more easily with Ms. Coulombe's evidence, it is clearly not possible that the officers arrived a few minutes past 5:20 p.m. if Ms. Deschambault was arrested at 5:23 or 5:24 p.m. As the chronology of times following Ms. Deschambault's arrest flow logically from Cst.

Crocker's evidence and are contradicted by Cst. Duvall's, I must conclude that Cst. Duvall's recollection as to their time of arrival is incorrect. [ 89 ] I accept that the officers were dispatched at a time nearer 5:00 p.m. than 5:10 p.m. and that Ms. Coulombe is incorrect in her estimate of the time she called the police. Given her evidence that she waited about 15 minutes before calling the RCMP, she must also be incorrect as to the time she observed the accident. [ 90 ] Next, I must consider the time lines provided by Ms. Norton. She said that Ms. Deschambault came to her home twice on July 28, 2012.

She did not say when either visit occurred but did say that the second visit, when Ms. Deschambault came in the truck, occurred at supper time and before the RCMP arrived and interviewed her. She said that Ms. Deschambault stayed 15 to 30 minutes on this occasion. Ms. Norton said that she did not see Ms. Deschambault arrive or leave on the second visit because she was busy making supper. However, she did not give evidence as to what time supper time was on that day. [ 91 ] If Ms. Deschambault was in the truck which struck the monument, she required five minutes (according to Ms.

Coulombe's evidence) to extricate the vehicle, drive behind the Norton residence, visit for 15 to 30 minutes and drive the short distance back to where she was arrested. From the evidence before me, including the map, I believe this would take 25 to 40 minutes. Given that she was at her place of arrest before 5:23, this means that she would have struck the monument, if she did, between about 4:43 and 4:58 p.m. [ 92 ] Ms. Norton was uncertain and was not careful with her estimates of times. As to the second visit, she estimated it first as one- half hour, later as 20 to 30 minutes and eventually 15 to 20 minutes.

I am not confident to accept any of these estimates as accurate. [ 93 ] Therefore, if Ms. Coulombe is inaccurate in her estimate of the time the accident occurred and if I discount Ms. Norton's evidence of the duration of the visit, it could be proven that Ms. Deschambault drove the truck which struck the monument and that the accident happened some time after 4:43 p.m. [ 94 ] Allowing approximately 15 minutes before Ms. Coulombe called the RCMP, this would allow the officers' dispatch to be nearer to 5:00 p.m. and would allow time for the travel and other activities they described before arresting Ms.

Deschambault at 5:23 or 5:24 p.m. [ 95 ] Thus it is possible that Ms. Deschambault was in the truck that struck the monument and then visited at the Norton house. But is it proven? [ 96 ] No one identified Ms. Deschambault as the driver of any vehicle that day. The only evidence that Ms. Deschambault was driving at all came through her admission to Cst. Crocker. In response to the officer's question as to why she was driving, she replied that she delivered a boat and motor to Penny's and that she was alone in the vehicle when she did so. This is an admission of driving. [ 97 ] Ms. Norton testified that Ms.

Deschambault visited her home twice that day. While Ms. Deschambault admitted to driving to Ms. Norton's, there is no evidence as to whether the vehicle Ms. Deschambault was referring to was the black car she was in on her first visit or the truck she was in on the second. Her admission was made within minutes after she was found leaning into the passenger seat of a black car and it may be that in the context of this circumstance, this was the vehicle to which she referred. If so, her admission was related to the first visit. [ 98 ] Ms. Norton testified that she had two other visitors that day.

She did not say when the other guests visited, whether they arrived alone or whether Ms. Deschambault arrived alone on either or both occasions. Without being able to tie Ms. Deschambault's

statement that she was alone in the vehicle to a specific visit, it is quite possible that Ms. Deschambault was referring to her visit in the car and that she arrived in the truck in the company of another or others of Ms. Norton's visitors and that one of them drove the truck. If this is in fact what happened, Ms. Deschambault, upon being arrested for impaired driving, would necessarily have made the admission in relation to the visit on which she was alone and driving; this would be the first visit in the black car. [ 99 ] On the other hand, Ms. Deschambault said she had delivered a boat and motor to Ms.

Norton. Does this tie the delivery to the truck and lead to the conclusion, therefore, that the truck was the vehicle Ms. Deschambault admitted to being in alone? Is so, this places her in operation of a vehicle at the Norton house at around supper time. [ 100 ] One might assume that a boat and motor would more likely be delivered in a truck than in a car, if, for example, she was referring to a 12-foot aluminum boat. However, Ms. Deschambault did not describe the boat or motor and Ms. Norton was not asked. It might also have been an inflatable dinghy with a small motor, a model boat or even a toy boat.

Any of these could be delivered in a passenger car. [ 101 ] Further, the photograph of the truck box taken after Ms. Deschambault's arrest shows that the truck box was full with various large items. Ms. Coulombe said that the box was full when she saw the truck before it struck the monument and testified that the items in the box in the photograph taken after Ms. Deschambault's arrest looked similar to what she observed at the time of the accident. Given the load shown in the photo, a missing full-sized boat and motor would be significant but Ms.

Coulombe did not observe anything changed or missing in the truck box. This supports the possibility that the boat was not in the truck bed Ms. Coulombe observed and was not delivered from the truck in the photograph. [ 102 ] Or, it may be that Ms. Deschambault was lying to the officer or was wrong when she said she delivered a boat and motor to the Norton house. That statement, however, was tied to her admission of driving - she said that she was alone when she delivered the boat and motor.

I have no basis, especially given other uncertainties in this case, to discount one statement while accepting the other when they were given as, in effect, a single admission. [ 103 ] Therefore, I am not satisfied beyond a reasonable doubt that Ms. Deschambault was in or was driving the truck that struck the monument. [ 104 ] In so concluding, I am mindful of Cst. Duvall's evidence that he observed red paint, similar in colour to that on the monument, on the bumper of the truck he photographed.

He also said he observed areas on the bumper that were recently free of dust, whereas the rest of the bumper was covered. However, he did not measure the height of the bumper or the height of the damage on the monument and cannot say whether or not they align. Further, paint samples were not taken or analyzed. Without such evidence, Cst. Duvall's observations do not show beyond a reasonable doubt that there was contact between the bumper of the truck he photographed and the monument. [ 105 ] Thus, Ms.

Deschambault's statement that she was alone in the vehicle when she delivered the boat and motor does not assist in determining the time she was driving. Exceed .08 [ 106 ] As I am unable to determine the time Ms. Deschambault was driving a vehicle, I cannot conclude that the driving occurred within two hours of the time that the blood alcohol tests were administered. As such, the presumption in section 258(1)(

c) does not arise and no evidence was given relating the readings obtained to Ms. Deschambault's blood alcohol content at time of driving. Indeed, it would be impossible to provide such evidence given that the time of driving is unknown. [ 107 ] As such, Ms. Deschambault will be acquitted on count #2 for driving while her blood alcohol content exceeded .08. Impaired Driving [ 108 ] For parallel reasons, the charge of driving while impaired has also not been proven. Indicia of impairment observed at about

5:23 p.m. may or may not have any relevance to Ms. Deschambault's state of impairment, if any, at the unknown time of driving. [ 109 ] In any event, I am not satisfied that the indicia of impairment in evidence would have been sufficient to establish that Ms. Deschambault's ability to operate a motor vehicle was impaired. Cst. Crocker testified that he noted the smell of alcohol, slurred speech and that Ms. Deschambault was unsteady on her feet. [ 110 ] However, observations later in her detention establish that she had a cut in her foot for which she sought hospital attention.

I also have viewed a photograph of the cut: it shows a significant cut and a "flap" of skin on the ball of her foot where her weight would bear down when she walked. It is quite possible and likely that this interfered with her ability to walk steadily. [ 111 ] With no observations of improper driving or compromised gross or fine motor skills, I am not satisfied that an odour of alcohol and slurred speech alone will prove impaired ability to operate a motor vehicle. [ 112 ] For these reasons, Ms. Deschambault will be acquitted on count #1 for impaired driving.

Dated at Fort Qu'Appelle, Saskatchewan this 11th day of July, 2013. _________________________________ B. Tomkins, J