Her Majesty the Queen - v. -, 2011 SKPC 114

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 114 Date: July 14, 2011 Information: 24370768 & 24370763 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth Robert Reavie Appearing: Mr. Tom Healey For the Crown Mr. George Green on Info. #24370768 Self-Represented on Info. #24370763 For the Accused DECISION B. MORGAN , J [ 1 ] Mr.

Reavie is charged on Information 24370768 with one count of driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, and one count of operating a motor vehicle in a manner dangerous to the public, both charges more formally particularized on that Information. Additionally, arising out of events relevant to his arrest that evening, he is charged on Information 24370763 with one count of unlawfully possessing a small amount of psilocybin, and one count of possessing a small amount of cannabis marihuana. This all allegedly occurred in the early morning hours of April 10, 2010.

[ 2 ] Mr. Green has brought an application under section 24(1) of the Charter requesting a stay of proceedings on all charges, on the basis that the defendant was arbitrarily detained on the morning of his arrest from approximately 3:30 a.m. to 12:00 noon, claiming a breach of his rights under

section 9 of the Charter . All notices have been served, and Mr. Healey represented the Crown, both federal and provincial, on that matter as well. Evidence at trial, being that an e-mail dealing with the time of release had not been disclosed and was no longer available, also was incorporated into the application. [ 3 ] By agreement, as the first Crown witness was going to be speaking of things the defendant said, the trial commenced with a voir dire to deal with voluntariness, with the evidence of that witness being applied to the trial proper, depending of course on the ruling as to admissibility.

The trial proceeded on the impaired driving/dangerous driving charges, with the evidence to then be applied to the possession charges. Mr. Reavie, although representing himself on those drug charges, has adopted the Charter application of his counsel. CROWN EVIDENCE Cst. Kyle Jeffrey [ 4 ] Cst. Kyle Jeffrey, a member of the Carrot River Detachment of the Royal Canadian Mounted Police, was on routine patrol in Carrot River at approximately 10:30 p.m. on April 9 when he noticed a black pickup truck, what he referred to as a Harley Davidson edition, coming into town from the south at a high rate of speed.

This vehicle passed directly in front of the police vehicle, which was stopped at a stop sign. The officer activated his emergency lights, and that truck quickly turned behind a convenience store and parked at the bar situated behind that convenience store. By the time the officer got to the truck, it was empty, although he noticed an individual, dressed in a black hoodie and wearing a black ball cap, entering the bar quite quickly. He checked the licence plate, found it was registered to Mr. Reavie, and then proceeded into the bar to locate Mr. Reavie.

As he passed by that truck, he noted some beer caps in that vehicle. In the bar, Mr. Reavie identified himself to the officer, and stepped outside, as requested. [ 5 ] The officer was inquiring as to why Mr. Reavie was in such a rush to get into the bar, and he replied that the individuals in the vehicle were drinking, and they rushed into the bar to avoid the police and avoid being ticketed. This led to Mr. Reavie being given a ticket for, in the officer’s words, “drinking open alcohol in a motor vehicle”. Once Mr. Reavie was issued the ticket, he was allowed to rejoin his friends in the bar. Mr.

Reavie told the officer that he had not been driving, as, in the officer’s words, he “actually stated to me that he was far too intoxicated to be the driver” (transcript, Vol. I, page 19). Cst. Jeffrey warned Mr. Reavie that he didn’t want to see that vehicle moving that night without a sober driver. Mr. Reavie indicated that he would not be driving the vehicle, and that in fact his friend had been driving the vehicle when they pulled into town because Mr. Reavie was too intoxicated to drive the vehicle that night. [ 6 ] Cst. Jeffrey stated that, when he came out of the bar, Mr.

Reavie was very slow, methodical with his movements and he was very conscious of how he was walking. He appeared to be very delayed in his movements, had very bloodshot eyes, and smelled profusely of alcohol coming from his mouth and his body. The officer went on to say that he had poor coordination, and that when he was moving around vehicles he would reach out and hold himself, in an attempt to kind of steady himself. Cst. Jeffrey stated that “he appeared to me to be highly intoxicated at that time”. When Cst. Jeffrey made these observations, Cst. Koshman and Cst.

Stanton had arrived and were in the area, although they didn’t have any direct dealings with Mr. Reavie. [ 7 ] After all of this had transpired, Cst. Jeffrey continued his patrol. At approximately midnight, the police officers (it appears that all three officers, in two vehicles, were on general patrol that night, and would come across each other at various times) came upon one of the individuals who had been with Mr. Reavie earlier, a Mr. Daniel Ratcliffe, who was stumbling around, and appeared to be quite intoxicated. He was given a ride back to the bar, when asked by Cst.

Jeffrey if that is what he wanted, as he said he was lost. After Mr. Ratcliffe was dropped off, Cst. Jeffrey remained outside the bar, speaking to a few patrons, when he noted Mr. Reavie walk out of the bar with a beer in his hand. Seeing the officer, Mr. Reavie went back and placed that beer inside the bar, came back out, and had a further conversation with the officer. Cst. Jeffrey noted what he referred to as “stronger signs this time of being intoxicated”, referring to slow deliberate movements, and he thought that on this occasion Mr. Reavie was actually leaning against the wall for support.

The officer said that Mr. Reavie was very animated with his hands, had very slow movements, that he was very uncoordinated, slurring his speech quite profusely, and that he continued to have a smell of alcohol on him. The officer again warned Mr. Reavie about the officer’s concerns that the truck not move without a sober driver, and Mr. Reavie again indicated that they had a sober driver, although it was not stated who that person was. No other officers were present with Cst. Jeffrey, to his recollection. [ 8 ] After this brief encounter, Cst. Jeffrey went back on patrol. The third encounter led to the arrest.

At approximately 2:45

a.m. on April 10, Cst. Jeffrey was heading northbound into Carrot River when he noted the same Harley Davidson edition truck that he had stopped previously that night, heading southbound out of town, the direction from which it had come earlier, again on Highway #23. It appeared to have three occupants, although the officer wasn’t sure. He said the vehicle was going out of town at a high rate of speed. He turned around and pursued the vehicle, with his emergency lights engaged, as he was concerned that there may not be a sober driver in that vehicle.

By the time the officer turned around and went after this vehicle, the vehicle was approximately half a mile ahead of him, and although he had accelerated to about 140 kilometres an hour, he said he didn’t appear to be gaining any distance on the truck. He stated that at that time the truck lights disappeared from the highway, with no brake lights or turn signal, and that it “just kind of disappeared” out of his sight. He said the headlights actually looked as if they were on a side road, but upon getting closer, the vehicle was found to be in the middle of a field.

Upon arriving, he said he could see skid marks across a gravel approach into the ditch, out of the ditch, and into the field some 150 yards or so, where the vehicle was now stuck up to the axles in mud. He pulled up, shone his spotlight into the truck, and could see that the driver was Mr. Reavie, identifying him initially by the clothing he had earlier observed Mr. Reavie wearing. The officer stated that he was accelerating the truck with such force that the engine was smoking, the engine was squealing, and the tires were smoking. The officer’s experience and belief led him to believe that Mr.

Reavie was trying to evade police and get away out of that field. [ 9 ] As the officer got closer, he also recognized Mr. Ratcliffe, the individual he had given a ride to the bar some hours earlier, and later learned the third individual was another of Mr. Reavie’s friends. [ 10 ] Cst. Jeffrey approached the vehicle and told Mr. Reavie to shut the truck off. The officer noted in his evidence that it appeared to him that Mr. Reavie was having difficulty with that, and “appeared to be quite frantic with his movements”. It appeared to the officer that Mr.

Reavie was trying to turn the key and pull the key out of the ignition without putting the shifter into park. The officer noted that Mr. Reavie was showing “a high level of intoxication”, noting that he seemed to be having difficulty in multitasking. He stated that Mr. Reavie’s movements were slow and uncoordinated, he was leaning and losing his balance, was smelling of alcohol, and still had bloodshot eyes, all of which led the officer to believe that Mr. Reavie continued to be highly intoxicated. [ 11 ] When Mr.

Reavie stepped out of the vehicle, he was advised that he was under arrest for impaired operation of a motor vehicle. He was reaching into his pockets, and told to stop doing so. He was placed into handcuffs, walked back to Cst. Jeffrey’s police vehicle, and searched. A small amount of what appeared to be mushrooms (psilocybin) was located in a pocket. [ 12 ] By this time, Constables Koshman and Stanton had arrived, and a search of the vehicle revealed a bag of what was believed to be marihuana. As there was some doubt respecting ownership of that bag of marihuana, both Mr.

Ratcliffe and the other occupant were also arrested, initially for possession for the purpose of trafficking, and also taken into custody. [ 13 ] Although the original plan was to obtain an Intoxilyzer reading from Mr. Reavie, there was, to Cst. Jeffrey’s belief, no working Intoxilyzer within about 100 kilometres, so he decided not to get such a sample. The officer did note that at this point it was 2:50 a.m. on April 10, 2010. Mr. Reavie was driven to the Carrot River Detachment, where a warned statement, captured on videotape, was taken. [ 14 ] The officer testified that, at the time Mr.

Reavie was at the detachment, he appeared to be “very methodical, very cautious with every step that he took, and lots of times he would have to steady himself again at the detachment”. The officer referred to Mr. Reavie having the same symptoms that he had “documented the previous two encounters that night with him”. Mr. Reavie stated he had been in an altercation at the bar, which could explain the somewhat dishevelled appearance noted by Cst. Jeffrey at this time. [ 15 ] The video of the warned statement was played as part of the voir dire . It ran from approximately 3:40 a.m. until just after 4:00 a.m.

The video portrays Mr. Reavie sitting on a couch, facing the camera, with Cst. Jeffrey’s back to the camera, sitting at a table facing Mr. Reavie, and asking him questions. [ 16 ] The general gist of the exchange was that Cst. Jeffrey was asking questions pertinent to the investigation as to the driving and ownership of the drugs located in the vehicle. Mr. Reavie was, in my view, more intent on talking about the fight he was in at the bar. A consistent theme of the interview was that anytime Cst. Jeffrey asked a direct question, such as how much alcohol Mr. Reavie had consumed, Mr.

Reavie would provide an oblique answer, or would deny drinking, and start to talk about the fight he was in. [ 17 ] There is nothing overly remarkable about Mr. Reavie’s posture. The video does show that he would sit forward to speak, then would somewhat fall back into the couch, although I cannot conclude that the falling back was caused by poor balance; rather, it

appeared to me to be a sign of frustration as to the situation he found himself in generally. [ 18 ] His thought process appeared to be somewhat rambling as he was going through the process of explaining what he had done and where he had been earlier that evening. His words were interspersed with numerous phrases such as “whatever”, “you know”, “right”, etc., although that is not necessarily indicative of anything other than a particular manner of speaking. However, many of the words he used had a distinct slurring sound to them.

For example, the word “decisions” became “dishissins”, the word “didn’t” became “dinnut”. Additionally, I noted phrases such as “kept ignoring him”, “we were in the field”, “police officer”, etc., were clearly slurred, demonstrating a significant difference from his manner of speech when testifying at the trial. [ 19 ] Mr. Reavie did maintain his insistence that another person was driving the truck when the group came to Carrot River the first time. When asked if he had consumed any drugs earlier that evening, he stated that he had “a little bit” of mushrooms.

When asked if he thought he was safe to be driving a vehicle, he started expressing a regret that he possibly should have gone straight home, and then acknowledged “maybe I shouldn’t have”. He followed that by stating that, at the time he was speaking, he was definitely not drunk. This latter comment was made just prior to the video ending, at 4:00 a.m., and his conduct in the interview, the observations made, and the words he spoke during that interview belie his statement that he wasn’t intoxicated at that time. [ 20 ] Examination-in-chief continued after the videotape was played. When asked why Mr.

Reavie was held, this issue being pertinent to the Charter issue raised, Cst. Jeffrey stated: Mr. Reavie was being held, we did have to interview the other two individuals that were arrested with him, relating to the drugs that were located on his person and in his vehicle. (a). (b), we did receive a complaint from our DOCC, from our DOCC, from the base as we were arresting Mr. Reavie, that there had been an altercation at the bar and Mr. Reavie and three – or sorry, three occupants, including Mr. Reavie, had left the bar intoxicated and the call was because of the causing a disturbance. That was (b). And then (

c) was public safety. We wanted to make sure Mr. Reavie had a place to stay because he was, under my opinion, intoxicated and was in no state to be released at that time. (transcript, Vol. I., page 63) [ 21 ] When asked to expand on the third ground, the officer stated: His third dealing with me that night basically left me under the impression that he was a major risk to the safety of the people on the roadway that night and until he was sober I did not see him to be released. ( page 64) [ 22 ] The officer clearly was of the view that Mr.

Reavie was “a major risk to the public and police safety”, these concerns being based as well on the fact that Mr. Reavie had been specifically warned, on two occasions earlier that night, not to drive, yet he had. The officer also had concerns that, due to Mr. Reavie’s level of intoxication, he might go back to the bar and, in the officer’s words, “things could have escalated regarding that altercation that we had a report about” (see page 65). When asked if the officer spoke to Mr.

Reavie at all about possibly releasing him to someone, the officer indicated that could have been an option, but at that time, “we needed to interview the other two individuals”, referring to the other occupants of the vehicle. The officer said “they were uncooperative with us at that time”, and went on to say: So again, the-- at that point I made a judgment call and said until these individuals became cooperative with us and someone took responsibility for the drugs that we found in the vehicle, they’d be lodged until everyone was sober. Again, they’d be asked to provide statements regarding the events.

If at that time they declined to provide statements and everybody was sober, they would be released. But until that time people needed to sober up before we could get to that conclusion. (see page 66) [ 23 ] The officer indicated that Mr. Reavie was placed back in cells after the warned statement was taken, this being at 4:00 a.m. The officer then returned to his residence, which was on a First Nation just north of Carrot River (he was actually stationed on that First Nation), arriving there at about 6:00 a.m. [ 24 ] When asked about whether or not Mr.

Reavie gave him any suggestions about being released to anyone, the officer indicated

he didn’t, and also said he didn’t ask Mr. Reavie if there was somebody he could be released to.

He reiterated his view that: Because it was 4:00 in the morning and because of the time constraint and I didn’t – the fact that if he did have someone to be released to, I had major concerns the fact that even if he was released, the condition he was in, he was unable to follow directions, so I was very hesitant in releasing him until he had sobered up, to anybody of any authority. (page 70) [ 25 ] The officer said that, when he left, he sent an e-mail to the members who would be coming in on the day shift, advising them that there were three individuals in cells, two of whom needed to be questioned, or that a statement needed to be obtained from them about the drugs located in the vehicle, or even just the altercation of that night. [ 26 ] The fact of the existence of that e-mail did not come to light until the officer’s testimony.

Rather than adjourn at that moment, it was agreed that the voir dire and trial would continue, leaving open the option of re-calling witnesses at a later date if necessary. Ultimately, although the e-mail was never located, a prisoner’s log sheet and activity report was, and was filed with the Court at a later date, with further argument on that issue being dealt with at that time.

This will be dealt with later in this decision. [ 27 ] In cross-examination, the officer, when asked if he was “going to hang on to the other two until they gave you a warned statement”, agreed that was correct, although he did say that if they wouldn’t give a warned statement, they were going to be released. His reasons for detaining those other two individuals were that: Because they were not cooperating with our investigation and they might have evidence that could lead to additional charges.

Again, nobody was taking responsibility for the ... (page 77) [ 28 ] The officer did not agree with the suggestion that they had to give a warned statement. [ 29 ] When queried as to why it was that none of the stated reasons for detaining Mr. Reavie were contained in the officer’s notes, he stated that “they’re common knowledge to myself, so I don’t know why they would be in my notebook” (page 80). When asked how it was he could recall things that had occurred six or seven months prior to trial, the officer stated that he had a good memory.

He testified that he could remember the reason why he held people for the last six months, each and every person, as “I’m pretty good that way” (page 81). [ 30 ] As stated earlier, the officer had testified that he had his emergency lights on when he pursued Mr. Reavie; after looking at his report, he agreed that he did not have his emergency lights on until he stopped at the side of the road, at which point Mr. Reavie’s vehicle was in the field. [ 31 ] Returning again to the issue of the reason for detention, the following exchange occurred, starting at page 111 of the transcript: Q.

What’s the policy on keeping people? What’s the RCMP’s policy? A. If we believe they’re not a safety risk to the public we can release them to a sober individual who will take ownership for them. Again, this individual was a safety concern to the public, greatly and that’s the reason, again, and was a subject in an ongoing investigation where we needed more evidence freely obtained from people who were in cells. Q. Right. And they were being uncooperative? A. Correct. Q. Because they weren’t giving statements? A. Yes.

[ 32 ] As for the length of time that Mr. Reavie was held, the officer testified: I intended for Mr. Reavie to be held eight hours and be released when he was sober.

He was lodged at 4:00 and released at noon which is ... [ 33 ] In essence, the officer agreed he had what defence counsel referred to as an “eight hour rule”, with respect to holding intoxicated people, although the officer did temper that by saying that eight hours was to be viewed “within reason” (page 114). [ 34 ] At the conclusion of this evidence, defence counsel agreed that there was no issue as to the voluntariness of the statements given to Cst. Jeffrey at the bar on either occasion, and had previously indicated there was no issue as to voluntariness on the warned statement.

The evidence on the voir dire was applied in its entirety to the trial, with the Charter issue to be dealt with as part of the trial, and the decision on whether or not there was a breach, and if so, the remedy available, to be dealt with as part of the entire case. Cst. Bradie Koshman [ 35 ] Cst. Koshman was present the first time a discussion was held with Mr. Reavie, at the bar, and he noticed slurred speech from Mr. Reavie, and that he had beer on his breath. He did say that Mr. Reavie was “walking fairly sure at that time”. [ 36 ] His next observation of Mr.

Reavie was in the field, which was the third time that Cst. Jeffrey had dealings with Mr. Reavie. When he arrived, the two were walking out of the field, and Cst. Koshman assisted at the point that they were on the road. He said that at that point Mr. Reavie appeared to be kind of stumbling, noting that his walking was not as sure as it had been earlier. The main object of Cst. Koshman’s attention, however, was the other two individuals, whom he said appeared to him to be “ intoxicated to the point that I didn’t understand what they were saying” (transcript, page 132).

This was at the point that those two were lodged into cells. The general flow of events at the scene of the arrest was that Mr. Reavie was taken out of the field first, leaving the other two in the truck for at least a few minutes. Cst. Dallyn Holmstrom [ 37 ] Cst. Holmstrom was the officer who actually released the three individuals; he gave them a ride to Arborfield. He testified that there was no officer at the detachment in Carrot River between 4:30 a.m., when Mr. Reavie’s statement had been concluded and the paperwork was done on him, and 10:00 a.m. that morning, a period of five and a half hours. Cst.

Holmstrom thought he actually may have arrived at the detachment about 11:00 a.m., and released Mr. Reavie at 12:00 noon. Mr. Jessie Boychuk [ 38 ] Mr. Boychuk was an individual who was in the bar that evening, and was involved in an altercation with Mr. Reavie. Prior to this date, he had not had any dealings with Mr. Reavie. He tentatively testified that Mr. Reavie had two drinks while Mr. Reavie was in the bar, and noticed that he was slurring his words and stumbling somewhat. This altercation came about over a girlfriend Mr. Boychuk was then dating, who had previously dated Mr. Reavie.

After the altercation, which consisted of each of Mr. Boychuk and Mr. Reavie trading blows outside for a few moments before Mr. Reavie’s friends broke it up, they both went back into the bar, continuing to drink, each at a different table, as they had been prior to the fight. Mr. Boychuk testified that Mr. Reavie stayed in the bar approximately one and a half hours after the altercation. In cross-examination he said that he was unaware of any second altercation involving Mr. Reavie’s friends and his friends that night. Darren Waldner

[ 39 ] The last Crown witness was the bartender and owner of the bar in Carrot River. He testified that Mr. Reavie, whom he knows, normally doesn’t stumble or slur his words. When asked as to the amount of alcohol Mr. Reavie consumed that night, he said he “probably” had three drinks of rye and coke. He testified he did not see any signs of impairment, and that Mr. Reavie was there for approximately two and a half hours, had three drinks, and then left. DEFENCE EVIDENCE Kenneth Robert Reavie [ 40 ] Mr.

Reavie testified on the trial proper, and stated that he woke at approximately 6:00 a.m. the morning before the early morning arrest, and cleaned grain until close to 4:00 p.m. He says that he and his friends had done some driving around in the area, and that he drank four Pilsner beer between 5:00 p.m. and 11:00 p.m., when he arrived at the bar in Carrot River, that he had two more Pilsner beer, and one spiced rum at the bar. He stated that Mr. Waldner, the bartender, was incorrect in testifying that he had rye and coke, as Mr.

Reavie testified he does not drink rye. [ 41 ] He testified that handling grain often irritates his eyes, and he conceded that he probably did smell of beer at the bar, as he had drunk four beer. He didn’t recall slurring his words, although he does get nervous when around police, so he “might have mixed up or jumbled my words a bit”, and this nervousness could have caused him to be fidgety, and to be swinging side to side a bit. [ 42 ] He testified that the fight with Mr. Boychuk was instigated by the latter, and that he was punched several times in the face and head, knocked down, choked, and kicked.

D-2, a copy of chart notes of a doctor dated April 12, 2010, was tendered as evidence for the fact that Mr. Reavie sought medical attention on that date. [ 43 ] He testified that, after this altercation, he returned to the bar, and did not have any further drinks after midnight. Mr. Boychuk, he testified, continued to act aggressively, in fact running each of Mr. Reavie’s two companions out of the bar, with the result that all three left the bar to go home. [ 44 ] He testified that, upon leaving Carrot River, he had no idea that police were in the area. He said that, as he approached the grid road Cst.

Jeffrey had referred to, one of his friends suggested they take that route back to Arborfield, and that when he tried to make the turn, it was too late, causing him to go off the road into the field. He stated that he was slowing and putting the brakes on prior to making the turn. He said that the first time he was aware of the presence of the police was when he saw the emergency lights engaged when the police vehicle was sitting at the road.

He said that he “might have been a little woozy from getting beat up”, intimating as well that any poor balance any officer might have noticed would be accounted for by the fact he was walking, in handcuffs, through a muddy field. [ 45 ] In cross-examination, he acknowledged that he had told the police officer, in the earlier statement, that he hadn’t had anything to drink in the bar, which was not true, and that he also had not been truthful to the officer when he initially told the officer that he had not been driving when the party arrived at the bar.

He also acknowledged to having consumed some magic mushrooms, or psilocybin, earlier in the evening. Robert Reavie [ 46 ] Robert Reavie, Mr. Ken Reavie’s father, also testified, and stated that, had he been called that morning, he would have come to pick up his son at the police detachment.

ANALYSIS [47] On the criminal standard, the Crown is required to prove each of the essential elements of each offence, beyond a reasonabledoubt, with credible and reliable evidence. There is no obligation upon the defendant to prove anything; he is presumed innocent unlessand until the Crown proves otherwise. [48] Something is credible if it is convincing, if it is able to be believed.

Reliability goes to dependability, and deals with thestrength or value placed on the evidence, based on factors such as the witnesses’ ability to accurately observe what occurred, and his orher ability to accurately recall it at trial. The evidence at a trial is to be looked at as a whole, not in a piecemeal fashion. [49] The credibility and reliability of any witness is always an issue. Here, as there is conflicting evidence, I must apply thereasoning set out in R. v. McKenzie (1996), (SK CA), 141 Sask.

R. 221, (C.A.), as set out at page 223, whichmandates the use of a well-established test: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the evidence which you doaccept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [50] As to the Charter issue, the burden to establish this is on the defence, on a balance of probabilities. [51] I will deal with the charges individually, and then turn to the Charter issue.

Count 2 - Operating a motor vehicle in a manner dangerous to the public [52] Section 249(1)(

a) sets out the statutory test: 249(1) Everyone commits an offence who operates: (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition anduse of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expectedto be at that place; [53] A recent and oft-cited case from our Supreme Court on this issue is R. v. Beatty, [2008] 1 SCR 49, 2008 SCC 5. In reviewingthe law as stated in the earlier case of R. v.

Hundal, (SCC), [1993] 1 SCR 867, the Court noted, at paragraphs 6 and 7: ....Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of bothcivil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthyconduct.

Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct thatdeviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crownto prove both the actus reus and the mens rea. ...

[7] The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mensrea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm fordetermining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in thecircumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civilnegligence, but will not suffice to ground liability for penal negligence.

The distinction between a mere departure and a markeddeparture from the norm is a question of degree. It is only when the conduct meets the higher threshold that the Court may find, on thebasis of that conduct alone, a blameworthy state of mind. [54] Analyzing the test, I note the following: · road conditions were good; Cst.

Jeffrey indicated there may have been a bit of moisture on the road, but nothing that would hinder thetraction of a vehicle; · the driving was at approximately 2:30 a.m. on a secondary road, over a very brief period of time, for a distance of a few miles; · there was no evidence there were other users on the road at the time of driving (other than Cst. Jeffrey), although one or more vehiclesdid pass by when the officers were dealing with the vehicle, at the time it was in the field. At most, one could say traffic was very light; · although Cst.

Jeffrey testified that the speed of the Reavie vehicle was approaching 140 kilometres per hour, I do not accept thatevidence as being anything other than a guess. The circumstances were such that the officer simply cannot and does not know the speedof the Reavie vehicle. I accept Mr.

Reavie’s evidence, in the absence of any reason not to, that he was driving probably between 100 and120 kilometres per hour which is not excessive on a highway; · the overall evidence of actual driving throughout the night is minimal, insofar as such evidence can be used to assess whether or not themanner of driving was dangerous. [55] I find on the evidence available that the manner in which the vehicle was being driven did not constitute a danger to thepublic, including the occupants of the vehicle, who were as equally members of the public as occupants of other vehicles using that roadwould be.

The evidence does not demonstrate a “marked departure” from the norm. The Crown has not established, beyond areasonable doubt, the elements required to moor criminal liability for the offence of dangerous operation of a motor vehicle and I dismisscount 2 of Information 24370768. Count 1 - Operating a motor vehicle while his ability to do so was impaired by alcohol or a drug. [56] The legal test for impairment is as set out in R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th ) 127, (Ont.C.A.), that being whether or not the evidence of impairment establishes, beyond a reasonable doubt, any degree ofimpairment, ranging from slight to great. This impairment must relate to the defendant’s ability to operate a motor vehicle, and it mustbe caused by alcohol or a drug. [57] Leaving aside for the moment Mr. Kenneth Reavie’s evidence, there are five other sources of evidence respecting Mr.Reavie’s ability to operate a motor vehicle, being: 1) Cst. Jeffrey’s observations on three occasions; 2) Cst.

Koshman’s evidence based on two occasions; 3) Jessie Boychuk’s evidence; 4) Darren Waldner’s evidence; and 5) the video. [58] Starting with Cst. Jeffrey, I have a concern as to the accuracy and reliability of some of what he testified to having occurred. This concern has the greatest impact on the impaired driving charge, and the Charter issue raised by the arrest. I do not share hisconfidence in his ability to remember matters some time later, without the assistance of notes.

The officer was, at times, not particularlyclear on what his reasoning was, and he had a tendency to leap from facts to conclusions he made, without explanation. He would oftensay “we” when he clearly meant “I”, leading to occasional confusion.

[ 59 ] As one example of his tendency to skip over things, he never actually did state that he believed that Mr. Reavie’s ability to operate a motor vehicle was impaired by alcohol or a drug, despite being guided, twice, to that central issue. Although failing to recite the “magic words” is not fatal to the Crown’s case, his failure to be clear on things of major importance, and to make note of things of major importance, was consistently displayed throughout his testimony.

This lack of clarity was exhibited in particular when dealing with the questions as to his reasons for detention. [ 60 ] What I was able to glean was that the officer had two main reasons for detention. One was that Mr. Reavie “ did not take ownership for the drugs”, and a second reason was that the officer was not prepared to release him due to public safety concerns, this latter point being directly related to his level of intoxication.

As for the comments the officer had respecting the release of the other two individuals, I am of course not dealing with their Charter rights at this stage; I refer to it because Cst. Jeffrey’s attitude towards release of them may impact on what I can view his attitude towards the release of Mr. Reavie to be. Further, as the officer tended to lump all three individuals together at times, it was somewhat necessary to burrow into his reasoning on release generally, in order to ascertain his views on releasing Mr.

Reavie in particular, which is of course a main issue in this trial. [ 61 ] He testified on November 18, 2010 about events that occurred April 10, 2010, seven months later. He agreed that his decision as to what gets included in his notes, and what doesn’t get included, is “pretty much” completely arbitrary. In his view, his memory was pretty good, and although this was borne out on occasion (see Exhibit P-4, respecting the timing of when Mr.

Reavie allegedly said he was not going to be driving), other matters were not so clear. [ 62 ] As one example, when referred to his report, and referencing the comments he said Mr. Reavie made to him at their first encounter (see paragraph 5 of this decision), the officer agreed that it reads, “Reavie stated he was not driving and that one of his friends was because he had been drinking”. When asked if he would agree that it is much more likely Mr. Reavie said he had been drinking, not that he said he was intoxicated, the officer replied: Sure. He said he was drinking.

I said he was intoxicated. (page 84) There is a clear distinction between one saying he had been drinking, and one saying he was intoxicated. It is disturbing that the officer would put in his report not what Mr. Reavie actually said to him, but what the officer thought this meant. This is an example of my reasons for having concern with the accuracy of his notes, and hence the reliability of his evidence on some points. [ 63 ] As far as symptoms noted by Cst. Jeffrey in his notes, they include unsteady balance, bloodshot eyes, slurred speech, and beer on Mr. Reavie’s breath.

Those observations did not appear to change the three times that he had dealings with Mr. Reavie. What is missing from his notes, in general, is an accurate and reliable assessment of the order that things occurred, and who else was or was not present at a particular point in time. [ 64 ] I am satisfied that Cst. Jeffrey was absolutely sure, in his mind, that Mr. Reavie was intoxicated. However, his notes of what he observed do not always make clear the reasons for this strong belief. For example, he testified that, when Mr.

Reavie got out of the truck in the field, he was leaning on various objects to steady himself, a comment he had made as well when he had earlier dealings with Mr. Reavie. However, this particular indicia of impairment was not recorded in his report. [ 65 ] Cst. Jeffrey’s overconfident reliance on his memory, and the fact that some things he testified to are not included in his notes, and that at some points his notes differ from his testimony, causes me to question how reliable Cst. Jeffrey’s evidence is, when that evidence gets into specific details.

At such times, I prefer to rely more heavily on other evidence. [ 66 ] I do accept Cst. Jeffrey’s evidence generally as to signs of impairment, and I do accept that there was some indication of poor balance on each occasion that Cst. Jeffrey had dealings with Mr. Reavie. His observations were, in many cases, buttressed by other evidence that I also consider to be reliable. [ 67 ] Cst. Koshman noted that, the first time he observed Mr. Reavie, he was “walking fairly sure at that time”, a notable

distinction from the observations of Cst. Jeffrey, who basically referred to Mr. Reavie as being very unsteady and clearly lacking balance. This was the initial incident at the bar, when Cst. Jeffrey first noted Mr. Reavie’s vehicle. I prefer the evidence of what Cst. Koshman saw many hours prior to the arrest; although it is not, in itself, determinative of the condition Mr. Reavie was in at the time he was driving, it is reliable evidence of his manner hours prior to his arrest. What is of more import, however, and what I also accept, is Cst. Koshman’s evidence as to the difference in balance that he noted Mr.

Reavie display at the time of arrest. Cst. Koshman testified in a very fair and straight-forward manner as to what he saw and knew. And what he observed was that on the road, at the time of arrest, Mr. Reavie appeared to be somewhat stumbling, which was a deterioration from the earlier observation that Mr. Reavie “seemed to be walking fairly sure”. [ 68 ] I place little reliance on the evidence of Jessie Boychuk as to how much Mr. Reavie drank in the bar, as I can think of no reason why Mr. Boychuk would have any reason to know how much Mr. Reavie had consumed at the bar. He was clearly estimating the amount.

I accept his evidence that Mr. Reavie was drinking in the bar, a fact noted as well by Mr. Waldner, and I accept his evidence as to what occurred during the fight, how many fights there were that night, and his observations as to Mr. Reavie being somewhat stumbling, and slurring his words, in the bar. He was directly involved with Mr. Reavie that night, and would have reason to recall these types of things. Mr. Boychuk was polite and cooperative during both phases of his testimony, and was quite prepared to express uncertainty on points that he did not recall.

He was credible and his evidence was reliable. [ 69 ] The same limitation on the evidence of how much was consumed by Mr. Reavie holds true for Mr. Waldner. I do not accept that he would have any reason to know, seven months after the fact, what one particular individual consumed, as to quantity or type of drink. In point of fact, if one were to accept Mr. Reavie’s version of what he drank, Mr. Waldner’s version as to what Mr. Reavie drank would be wrong. For the same reason, I don’t place a lot of reliance on his observation that Mr. Reavie had, to Mr. Waldner’s perspective, no signs of impairment.

There was nothing remarkable about the events of that night at all inside the bar that would cause Mr. Waldner to be noting anything in the nature of what he testified to. [ 70 ] The fifth source of evidence as to impairment comes from the video statement. In reviewing it, it is abundantly clear that Mr. Reavie is slurring his words, and he is frustrated. One cannot really ascertain his balance, based on what is portrayed in the videotape. However, it is apparent that his reasoning ability is hampered, and his response to questions is slow.

His claim that he might have been nervous is not borne out in the video; he does not appear to exhibit that in the video. What does strike me as being of some significance is that, despite being fuzzy on some things, he does consistently deflect any questions directed to his level of intoxication. [ 71 ] The other evidence as to impairment, of course, comes from Mr. Reavie himself. For various reasons, I have little confidence in Mr. Reavie’s evidence. First, there have been instances in which he gave false information to the police on the night this occurred.

That might be understandable, in the circumstances; however, Mr. Reavie’s credibility suffered from that. [ 72 ] Further, I do not accept his explanation as to perhaps slurring his speech or walking unsteadily as being due to him having suffered a head trauma. There is no medical evidence to suggest that; the note from the doctor (Exhibit D-2) is based on information provided by Mr. Reavie, at the doctor’s office, two days post-arrest. The purpose for which it was tendered, as counsel referred to at the time it was tendered, was to prove that fact, not that Mr. Reavie in fact suffered a head trauma.

What I do find to be more compelling evidence as to the extent of injuries Mr. Reavie claims to have received that night was the fact that, after the altercation, he returned to the bar to continue drinking. He at no time throughout the evening requested medical assistance. I don’t accept the second altercation he refers to as being accurate. In total, Mr. Reavie undoubtedly was in a fight; however, he exaggerates the extent of the injuries suffered. [ 73 ] Further, I do not accept Mr.

Reavie’s evidence that he was unaware of the presence of the police vehicle that he passed as he and his friends were heading out of town, nor his explanation of the reason for the sudden turn down a side road. I reject his evidence that he had not noticed it was a police vehicle he passed as he and his friends left town. Having been told twice earlier by an officer that his vehicle should not be moved unless there was a sober driver, he would almost certainly be on the lookout for police, and his actions are totally consistent with an attempt to avoid detection.

The idea that he would travel across grid roads, at 2:30 in the morning, when he could have stayed on pavement for most if not all of the drive home, simply makes no sense in any other context. As to the turn itself, the fact that he would attempt such a manoeuver at the last moment, as it were, does provide evidence of his inability to operate a motor vehicle. In these circumstances, his decision to attempt the turn speaks directly to the extent of his ability to make the numerous ongoing decisions every driver must routinely face while on the road.

A sober driver would not attempt such a turn, at high speed, at night, at the last moment. [ 74 ] As well, there is the evidence of Cst. Jeffrey, which I do accept, that on each of the occasions he had dealings with Mr. Reavie to the time of arrest, Mr. Reavie had some issue with his balance, was slurring his words, had bloodshot eyes, and smelled of alcohol. Although I do not accept the officer’s evidence of the extent of his balance problems, for the reasons given, I do accept that Mr.

Reavie’s balance, in general, deteriorated over the course of the evening. [ 75 ] Having had the opportunity to observe Mr. Reavie on the stand, and in the video, I reject his evidence. He had no satisfactory explanation when pressed in cross-examination as to why he was untruthful to the officer at the bar. I noted that he did not slur his speech when giving evidence, as he did on the video of the warned statement, taken just over an hour after his arrest. [ 76 ] I am not required to, if I disbelieve Mr. Reavie, as I do, convict on this charge. Nor am I required to choose one version of events over the other.

Rather, I am to assess all the evidence to see if I am satisfied that the offence has been made out beyond a reasonable doubt. [ 77 ] Mr. Green, in examining his client, went into some detail as to what other things could explain symptoms of apparent impairment. But that is not the test. The test, as set out in the well-known Stellato case, is whether or not the evidence is sufficient to establish any degree of impairment, ranging from slight to great.

In arriving at a decision, I am not to look at each piece of evidence in isolation. [ 78 ] In looking at all the evidence, I am satisfied that the Crown has proven this charge beyond a reasonable doubt. Mr. Reavie had admitted to consuming four beer between 5:00 p.m. and his arrival at the bar close to six hours later. At the bar, he had, by his own admission, a few more, and a spiced rum. I am not satisfied that this reconstruction of consumption is accurate; I simply raise this as being the minimum amount ingested.

He, like other witnesses testifying as to specifics of what he drank, would have no reason to keep track of his alcohol intake pre-charge. After his arrival at the bar, he was observed on two occasions, prior to his arrest, to have bloodshot eyes, a lack of balance, slurred speech, and the smell of alcohol on his breath. [ 79 ] He was then observed driving, and he drove in a manner that is indicative of an impairment of his ability to do so, both in his decision making, and in his driving conduct at the field. His balance was now, as observed by Cst.

Koshman, poor, and noticeably different from three hours earlier. He continued then to observe the same indicia of impairment that others had noted earlier. [ 80 ] During the statement he gave to Cst. Jeffrey, he admitted to ingesting drugs earlier that night. Although that video does not help to assess his balance issue, it is clear that his ability to reason is impaired, and he is slurring his words. [ 81 ] On all the evidence, I am satisfied beyond a reasonable doubt that Mr.

Reavie’s ability to operate a motor vehicle on April 10, 2010, was impaired by alcohol or a drug, and I find him guilty of count 1 on Information 24370768. Count 1 on Information 24370763 - possession of psilocybin [ 82 ] The evidence is clear that, when Mr. Reavie was searched, what turned out to be psilocybin was located in his pocket (see the Certificate of Analyses, exhibit P- 2). He is guilty on this count. Count 2 on Information 24370763 - possession of cannabis marihuana [ 83 ] As for the cannabis marihuana, the evidence is insufficient to satisfy me beyond a reasonable doubt that Mr.

Reavie was in possession of it. There was no evidence he used it earlier that day (unlike the psilocybin), and the marihuana was found in the console of the vehicle. However, there were two other occupants in the vehicle for some time after Mr. Reavie was arrested. The evidence is simply insufficient to establish possession as that meaning is set out in section 4(3) of the Criminal Code , vis-à-vis Mr. Reavie. I dismiss count 2 on Information 24370763. The alleged

section 9 Charter breach

[ 84 ]

Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. [ 85 ] The statutory obligation directing peace officers as to the grounds for detention are set out in sections 497 and 498 of the Criminal Code . In R. v.

Fox , 2007 SKPC 61 , at paragraph 16 , Judge O’Hanlon of this Court summarised the application of those sections, noting that those sections require release of an individual who is arrested without warrant, as is the case here, unless the officer believes, on reasonable grounds, that detention is justified for one or more of the enumerated reasons listed under those sections. In R. v. Holbrook , 2008 SKPC 133 , Judge Harradence of this Court undertook a lengthy review of the law, commencing at paragraph 22. The general rule is that an individual in Mr. Reavie’s situation is to be released.

If he is detained, the grounds for doing so must fall within one of the enumerated exceptions set out, in this case, in s. 497. For convenience, the relevant portion of s. 497 is set out below: 497(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes on reasonable grounds: (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this part, having regard to all the circumstances including the need to: (

i) establish the identity of the person; (ii) secure or preserve evidence of or relating to the offence; (iii) prevent the continuation or repetition of the offence or the commission or another offence; or (iv) ensure the safety and security of any victim of or witness to the offence. [ 86 ] I reiterate that the decision to detain the other two individuals who were in the vehicle with Mr. Reavie that night is not evidence that necessarily pertains directly to Mr. Reavie. Put another way, I am not being asked to rule on any Charter breaches respecting individuals who are not before the Court.

When I refer to the decision to detain those other two individuals, I do so only as that decision may impact the decision to detain Mr. Reavie. [ 87 ] As for those other two individuals, in cross-examination, Cst. Jeffrey agreed that they did not have to give him a warned statement. When asked if he held them because they were exercising their right to silence, Cst. Jeffrey replied: Because – yah, because they were not cooperative and because they weren’t cooperating with the investigation and helping the police and taking responsibility for the drugs. [ 88 ] Shortly thereafter, when asked why Mr.

Reavie was not released, as he had given a statement, the exchange was as follows: Q. Fair enough. That’s a reason. That’s your reason. My client gave you a statement. Why wasn’t he released? A. He did not take ownership for the drugs. [ 89 ] When asked later if he would have considered his release if he had taken ownership, the officer testified he would have. [ 90 ] In this case, I am satisfied that the main reason that Cst. Jeffrey had for detaining Mr. Reavie is that someone, be it Mr. Reavie or one or both of the other two detained individuals, had to take responsibility for the drugs.

However, on the whole of the evidence, I also find that the officer also honestly believed that Mr. Reavie was incapable of following directions if released, due to his level of intoxication, and that belief, albeit a secondary reason, led to his decision to detain. In the officer’s view, Mr. Reavie did pose a risk to the public. [ 91 ] I believe that the public safety concern which Cst. Jeffrey seemed to rely on was meant to be a reference to his view that Mr.

Reavie’s detention was necessary to “prevent the continuation or repetition of the offence or the commission of another offence”, asreferred to in s. 497(1.1)(iii), or to “ensure the safety and security of any victim of or witness to the offence”, as referred to in (iv). However, a concern respecting these “risks” was not reasonable. There was no reason to think Mr. Reavie would drive again that night,and his concern that Mr. Reavie might return to the bar and re-engage Mr. Boychuk is purely speculative and conjectural. [92] As for the propriety of the reasoning that all three detainees, including Mr.

Reavie, should be held until someone tookresponsibility for the drugs, although that may have been more convenient for Cst. Jeffrey, that is not the law. The idea that a detainedperson is required to “cooperate” with the police by, in this case, “taking ownership of the drugs”, effectively relieving the Crown fromits obligation to prove the offence, is patently wrong.

No case authority has to be cited for this proposition. [93] In the cases cited by defence counsel, the general theme is that the decision to hold the individual was either one in whichthere was an improper exercise of discretion, or was the result of a policy to simply hold everyone who was impaired. Each case ofcourse turns on its particular facts. In this case, Cst. Jeffrey’s reason to hold Mr. Reavie was not authorized by law. It was unjustifiable. I therefore conclude that the defence has established, on a balance of probabilities, that Mr.

Reavie’s rights under s. 9 have beenbreached. [94] Having said that, I do accept that the officer had a firmly held and honest belief that Mr. Reavie was too intoxicated to bereleased. This belief was, however, secondary to his main ground for detention. I specifically do not accept the suggestion that he heldMr. Reavie to “teach him a lesson”; his legal grounds for detention may have been lacking, but his bona fides were not. [95] The next step is to determine, under s. 24(1) of the Charter, “such remedy as the court considers appropriate and just underthe circumstances”.

The defence seeks a stay of proceedings of all charges. The Crown argues that such a remedy should only begranted in the clearest of cases. [96] In R. v. Regan, 2002 SCC 122, [2002] 1 S.C.R. 297, in dealing with a case alleging an abuse of process, the Supreme Courtreiterated that “a stay of proceedings is only one remedy...”, going on to stress that a stay of proceedings is only available in the “clearestof cases” (see para. 53). In R. v. Taillefer, 2003 SCC 70, the same Court referred to a stay as having a “draconian nature” (see para.117). Both these cases made reference to the test set out in R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 75,being that a stay will only be appropriate if two criteria are met: the prejudice caused by the abuse in question will be manifested,perpetrated or aggravated through the conduct of the trial, or its outcome, and that no other remedy is reasonably capable of removingthat prejudice. [97] As Taillefer points out, at para. 118, there needs to be a “careful and balanced analysis of all the interests at stake - theinterests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases being diligentlyprosecuted”.

After referring to the criteria set out in O’Connor, the Court notes at para. 119 that the remedy has a “prospective ratherthan retroactive nature”. [98] Mr. Green has cited a number of cases in which a stay of proceedings has been entered, and the Crown has filed cases inwhich a stay was either not granted or was overturned on appeal. These cases demonstrate the wide range of authorities on this question,which ultimately comes down to a case-by-case analysis.

In this case, I note that this breach was not brought about by a police policy todetain everybody, nor was it done with deliberate malice. [99] I am not able to agree that a stay of proceedings is available for all the charges in which it is sought in this case. Based onthe dismissal of two charges, that leaves the impaired operation charge, and the possession of psilocybin charge. In my view, such aremedy, particularly in light of the impaired operation charge, is an excessive response. I am particularly guided by two decisions of ourCourt of Queen’s Bench. [100] In R. v.

Paquette, 2002 SKQB 427, Madam Justice Rothery held that “ a detention of ten hours does not warrant a stay ofproceedings.” After reviewing the case law, she noted that the remedy of a stay that was granted at trial was out of proportion to therights that were infringed.

[ 101 ] In R. v. Salisbury , 2011 SKQB 153 (apparently under appeal at this date), Mr. Justice Gerein held that, although the defendant’s

section 9 rights were breached, a stay of proceedings was not warranted. After reviewing a number of cases, he noted that the breach had occurred after the commission of the offence, and after its investigation, and that there was “no connection between the breach and the charges. That being so, the remedy....“was disproportionate to the violation of the Charter ”. The defendant in this case was held for nine and one-half hours after providing a breath sample. [ 102 ] I will deal with the breach of Mr. Reavie’s s. 9 rights in sentencing. With respect to the drug charge, that was the main reason for the detention.

With respect to the impaired operation charge, although there is a minimum fine, and a minimum driving prohibition, that does not mean that Mr. Reavie will necessarily receive that minimum penalty, and I can deal with the breach for that as well in sentencing. This is, in my view, an appropriate response in this forum. [ 103 ] Finally, there were issues respecting an e-mail that was not disclosed to the defence, an e-mail sent by Cst. Jeffrey to the officer coming on shift the next day, dealing with release, which was never found.

I have considered the prisoner activity report and the related documents that were filed with respect to this issue, and have determined that this issue does not have any impact on my decision. Dated at Melfort, Saskatchewan, this 14 th day of July, 2011. B. Morgan, J