Her Majesty the Queen - v. -, 2010 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 177 Date: December 15, 2010 Informations: 43397301and 43397302 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lorri D. Erickson (No. 2) Appearing: Justine Lapointe and Bryce Pashovitz For the Provincial Crown Jody Barber and Crystal Warde For the Federal Crown Ron Piché For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The trial for the accused, Lorri Erickson, began on December 17, 2009. At the outset of trial, counsel for the accused

advised that he would be making a number of Charter applications and seeking a remedy pursuant to section 24(2) of the Charter. Following a lengthy voir dire, I issued a written decision on April 16, 2010 on the issue of whether the accused’s sections 7, 9, 10(b)and/or 12 Charter rights were violated, and if so, whether any evidence should be excluded under section 24(2). See R. v. Lorri D. Erickson, 2010 SKPC 38 , [2010] S.J. No. 224, 209 C.R.R. (2nd) 167, 353 Sask. R. 132 (Sask. P.C.) [2] In my decision I found the accused’s

section 10(

b) right to counsel had been breached but I did not find any overholding andtherefore no violations of his sections 7, 9 or 12 rights. After going through a section 24(2) analysis I determined that the evidence ofMr. Erickson’s refusal to provide breath samples should be excluded as to do otherwise would bring the administration of justice intodisrepute. Consequently, the accused was acquitted of the charge of refusing to provide breath samples contrary to section 254(5) onInformation 43397301. Excluding this evidence had no impact on count #1 on the Information #43397301, a charge of impaired drivingcontrary to section 253(1)(

a) of the Criminal Code and the two section 4(1) Controlled Drugs and Substances Act charges onInformation #43397302. [3] Following my decision on this voir dire, by agreement of all counsel, the evidence from the voir dire was applied to the trialproper. Neither the Provincial Crown nor the Federal Crown had any further evidence to call and Defence Counsel called no evidenceon the trial proper. [4] The remaining issues are:

a) Did the arrest of the accused constitute a violation of his

section 9 Charter right to be free from arbitrary detention?

b) Was the subsequent search incident to arrest a violation of the accused’s

section 8 Charter right to be free from unreasonablesearch or seizure?

c) If there were any Charter violations should the remaining evidence be excluded pursuant to section 24(2) of the Charter?

d) Is the evidence sufficient to prove beyond a reasonable doubt that the accused was impaired and in care and control of a motorvehicle? FACTS [5] In my decision on the voir dire, I set forth the facts of the case in light of the issues I was dealing with at the time. I do notintend to repeat all of the facts I previously set out as not all of them are pertinent to the issues that remain in this trial. I will set outthose facts upon which my decision on these remaining issues rely. [6] Carla Rowe worked in the lounge at Tomas the Cook Restaurant located on Idylwyld Drive in Saskatoon.

On February 3,2009, she went to work at 6:00 p.m. When she got to the lounge she noticed the accused, Lorri Erickson, already sitting at the bar. Overthe next little while she served him three doubles. She was familiar with Mr. Erickson, having served him previously at the bar. Beforeserving him a third time, he stated that he had worked hard that day and was tired. She didn’t think he needed anymore to drink so shetold him that this would be his last drink. [7] The accused seemed fine with this and left the bar to go to another area of the lounge to watch some television.

Approximately one hour later, the accused got very upset about something and was causing such a commotion that he was of concern toother customers. As a result, Ms. Rowe asked the accused to leave and he did so voluntarily.

[ 8 ] Shortly before 10:25 p.m., a dispatch was sent out by Saskatoon Police Service communications advising that an intoxicated male had been kicked out of the Tomas the Cook lounge and had gotten behind the wheel of a moving van that had “Erickson’s Delivery” on the side. It was mentioned in the dispatch that the complainant was worried that this male might hurt someone. [ 9 ] Constable Timothy Berg and Constable David Gee were partnered together that night and responded to the dispatch.

When they arrived at the restaurant, they noticed a one ton white cube van parked in the parking lot area with “Erickson’s Moving” written on the side. The van was running and its headlights were on. [ 10 ] They parked their police cruiser in front of the van and shone their overhead lights into the cab. Upon doing so they noticed an arm over the steering wheel and moments later, the accused lifted his head up. Convinced that this was the subject of the dispatch, both officers got out and went to the driver’s door of the van. [ 11 ] Constable Berg opened the driver’s door and observed that Mr.

Erickson was slouched over, his eyes were glassy and glazed over, his face was droopy and slacked and he was dishevelled looking. He concluded that the accused was intoxicated while in care or control of the van. However, he did not arrest the accused himself. [ 12 ] Constable Gee was a recruit with the Saskatoon Police Service at this time and was being trained by Constable Berg. As a result, Constable Berg turned things over to Constable Gee to decide what to do.

He did not share his observations of the accused with Constable Gee because he did not want to taint his judgment. [ 13 ] Constable Gee testified that the accused appeared to be passed out. When he was asked to step out of the vehicle he noted that Mr. Erickson had glassy eyes and slurred speech. He could not however smell any alcohol on the accused. Based on these observations, he concluded that the accused was impaired and at 10:26 p.m. he arrested him for “impaired care and control”. Once arrested, the accused became quite upset and belligerent. [ 14 ] Constable Erin Tisdel also responded to the dispatch.

She arrived at the scene at 10:25 p.m. and noticed Constable Berg and Constable Gee already dealing with the driver of the white cube van. The van was running and the keys were in the ignition. At the request of Constable Berg, she got into the van and drove it forward a foot to establish that it was operational. She then parked the van, turned it off and gave the keys to Constable Berg. She did not make any observations about the accused’s level of impairment. [ 15 ] At 10:30 p.m. Constable Gee read Mr. Erickson his right to counsel and the police warning.

The accused responded in a very rude fashion using obscenities and inappropriate language. [ 16 ] While Constable Gee was dealing with the accused, Constable Berg searched the accused’s vehicle as incident to his arrest for impaired care and control looking for any intoxicants or anything that might provide evidence in this investigation. He located a duffle bag between the two front seats. The bag was open and crammed full with odds and ends.

He rummaged through the bag and tucked in amongst a bunch of stuff, he located a clear, unmarked pill bottle containing 13 Tylenol 3's, a pill bottle covered in brown packing tape contained .8 gms of marijuana and a marijuana pipe. [ 17 ] Immediately upon locating this contraband Constable Berg advised Constable Gee to arrest the accused for possession of codeine and marijuana. Constable Gee did this and at 10:32 p.m. he read him his right to counsel and police warning for possession of drugs. [ 18 ] At 10:35 p.m., Constable Gee read the accused a breath demand.

The accused responded with more obscenities and inappropriate language. Even though the accused was being uncooperative, Constable Gee was satisfied that the accused understood and comprehended his right to counsel, the police warning and the breath demand. [ 19 ] Constable Gee and Constable Berg transported the accused to Saskatoon Police Service detention. On the way, the accused continued to yell and swear and challenged the officers to fight. They arrived at detention at 10:39 p.m. The accused quieted down and

was booked in without any incident although he was still being somewhat difficult. While at the booking counter, Constable Berg notedthat the accused “smelled of booze”. This was the first time that he had smelled an odour of alcohol coming from the accused. [20] Eventually, the accused refused to provide breath samples into the intoxilyzer and was lodged in a cell until he sobered upenough to be able to control his temperament, look after himself and not re-offend or be a danger to the public. ANALYSIS

a) Did the arrest of the accused constitute a violation of his

section 9 Charter right to be free from arbitrary detention? [21] Counsel for Mr. Erickson argued that the evidence did not establish that Constable Gee had reasonable grounds to believe thatthe accused was committing the criminal offence of impaired care and control. Therefore he did not have the ability to arrest him forthat offence and by doing so, he breached the accused’s rights to be free from arbitrary detention or imprisonment. [22] Both the Federal and Provincial Crowns took the opposite view.

It was their position that Constable Gee did have reason tobelieve the accused was impaired and in care and control of a motor vehicle and as such, he was arrestable for same. [23] It is clear that Constable Gee did not obtain a warrant for the arrest of Mr. Erickson. This was a case of arrest withoutwarrant. In such a case the onus of establishing that a warrantless arrest is lawful rests with the Crown on a balance of probabilities. SeeR. v. McCallum, [2006] S.J. No. 404 (Sask. Q.B.) at paragraphs 10 and 21; R. v. Brown (1996), (ON CA), 47 C.R. (4th) 134 (Ont. C.A.) at paragraphs 3 and 4. [24]

Section 495 of the Criminal Code speaks to a police officer’s power to arrest a person without warrant. It states as follows: 495(1) A peace officer may arrest without warrant (

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

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

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553; (

b) an offence of which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and

(

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealtwith according to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution ofhis duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peaceofficer did not comply with the requirements of subsection (2). [25] In the present case Constable Gee initially arrested the accused for impaired care and control of a motor vehicle. The rest ofthe offences the accused was charged with arose later as a result of this initial arrest. Impaired care and control of a motor vehicle isfound under

section 253 of the Criminal Code and is a hybrid offence. That is, the Crown could proceed on this charge summarily or byindictment. The Crown, in this case, eventually elected to proceed summarily. [26] The accused was not arrested pursuant to an outstanding warrant for his arrest or committal and neither was he arrested for anindictable offence. As a result, section 495(1)(

a) and (

c) have no application. Constable Gee could only have arrested the accusedpursuant to section 495(1)(

b) on the basis he found the accused committing the criminal offence of impaired care and control of a motorvehicle. [27] In R. v. Janvier, 2007 SKCA 147 , [2007] S.J. No. 646 the Saskatchewan Court of Appeal dealt with a Crown appealfrom a trial judge’s acquittal of a charge of possession of marijuana for the purpose of trafficking. In this case, the accused was stoppedfor driving a truck with a broken headlight. As the officer approached the truck he could smell burnt marijuana. He immediatelyarrested the accused for possession of marijuana and searched him and the truck.

The officer located 8 grams of marijuana and otheritems consistent with trafficking. He then re-arrested the accused for possession for the purpose of trafficking. The trial judge foundthat the officer’s basis for arresting and then searching the accused was the smell of burnt marijuana and suspicion as to the presence ofmore marijuana. He held that that was insufficient to provide the necessary grounds to arrest or search the accused and as a result theaccused’s

section 8 Charter right was violated. The judge excluded the evidence under section 24(2) and acquitted the accused. [28] The Court of Appeal upheld the trial judge and dismissed the Crown appeal. In the decision, Madam Justice Jacksondiscussed the differences between section 495(1)(

a) and section 495(1)(b). After reviewing a number of cases, she concluded that: [27] For a police officer to arrest someone under section 495(1)(

b) of the Criminal Code, the officer must find the person to be“committing” the offence. According to Martland J, in Biron, section 495(1)(

b) deals with the situation in which the peace officerhimself finds an offence being committed. His power to arrest is based upon his own “observation”. While the reference to“observation” may be qualified by adding “smell,” this does not change the principle in Biron that in order for the officer to arrest aperson, the officer must actually observe or smell the offence for which the person is arrested - being committed. [28] Thus, I conclude that the standard for arrest without a warrant for the commission of a

summary conviction offence pursuant to s.495(1)(

b) is more strict than the standard for arrest for an indictable offence under s. 495(1)(a). [29] In assessing whether a police officer properly arrested a person under section 495(1)(b), the arrest must be justifiable from anobjective point of view. In Roberge v. The Queen, (SCC), [1983] 1 S.C.R. 312 (S.C.C.), Lamer J, as he then was,talked about the grounds required by an officer to arrest under either section 450(1)(

a) or section 450(1)(b) (now section 495(1)(

a) andsection 495(1)(b)). At pages 324 - 325, he said: . . . . I do not read the test laid down by Martland J. as suggesting that it is sufficient that it be “apparent” to the police officer eventhough it would be unreasonable for the police officer to come to that conclusion. Surely it must be “apparent” to a reasonable personplaced in the circumstances of the arresting officer at the time. [30] On the night in question, Constable Gee was a recruit in training. He was working with a senior officer, Constable Berg. Shortly before 10:25 p.m. they were dispatched to the Tomas the Cook Restaurant parking lot in regard to an intoxicated male who had

been kicked out of the lounge and was now behind the wheel of a large moving van that had Erickson’s Delivery on the sides. [31] The dispatch is hearsay. There was no evidence called at the trial substantiating it. Neither the Provincial nor the FederalCrown made application to have me consider this dispatch for the truth of its contents. Therefore, while it certainly goes to ConstableGee’s reasons for arresting the accused, it is of no use to me as I consider whether his reasons for arresting the accused were objectivelyreasonable. (See Madam Justice Charron’s comments in R. v.

Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 at paragraph 36). [32] Constable Berg dealt with the accused when they first arrived at the parking lot. He testified that the accused was slouchedover, his eyes were kind of glassy, but not really red or bloodshot, he had a glazed over, distant look, his hair was messed up, he wasdishevelled looking and his facial expressions were consistent with how someone looks when they are quite intoxicated. On the basis ofthese observations he concluded that the accused was impaired and in care and control of a motor vehicle.

Constable Berg did not noticeany odour of alcohol coming from the accused until much later when he was at the detention counter at the police station being bookedin. Constable Berg, in cross-examination, did agree that all of these things he noticed were also consistent with someone who wasextremely tired. [33] Constable Berg saw this situation as a training exercise so he turned the case over to his recruit, Constable Gee, to decide whatshould be done.

He did not pass any of his observations onto Constable Gee as he did not want to taint his judgment as to what should bedone, nor did he tell Constable Gee what to do. He left everything up to Constable Gee. [34] Constable Gee testified when they arrived, he observed the accused in the moving van and he appeared to be passed outbehind the wheel. Once the accused woke up and got out of the vehicle he noted that the accused had glassy eyes and slurred speech. As a result of these observations he arrested the accused for impaired care and control of a motor vehicle at 10:26 p.m.

He agreed thatConstable Berg did not tell him what to do or pass along any observations he may have made. In cross-examination he admitted that hecould not smell alcohol on the accused. [35] While both officers talked about the accused being arrested for impaired care and control, neither of them specified whetherthey felt the impairment was as a result of alcohol or drugs. However, I am satisfied that both of them felt that the accused was impairedby alcohol and that was the basis upon which he was first arrested. I say this for two reasons.

First, in the cross-examination ofConstable Berg by Defence Counsel, the following exchange occurs: Mr. Piché: - who was doing all that. All right. What did you - - what did you say to Constable Gee prior to him arresting theaccused? Constable Berg: Yeah, I can’t tell you I remember the exact conversation. I - - I know I held back from tellinghim, ya know, this guy is drunk, just arrest him. It wasn’t a conversation like that and okay,well - Mr. Piché: I know what it - - you’re saying what it wasn’t. What was it, because this is pretty important.

Constable Berg: Well like you put it, handing the torch over to him, saying okay, Dave, now you’re going to bein charge here, you go deal with him, decide what needs to be done here. It is clear from this passage that Constable Berg felt the accused was drunk. The usage of the term drunk can only mean that ConstableBerg felt the accused had consumed too much alcohol and was impaired. I can think of no other way that a person would be “drunk”. [36] Secondly, Constable Gee testified to the following time line:

10:26 p.m. - arrested accused for impaired care and control of a motor vehicle 10:30 p.m. - read accused his right to counsel and police warning 10:32 p.m. - re-arrested accused for possession of drugs and read him rights and warning again 10:35 p.m. -read accused breath demand The breath demand made by Constable Gee was read from a police issued card that he carried with him. It said: I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol . . .

It is of significance that even after being advised by Constable Berg that he had located some drugs in the accused’s truck, ConstableGee still made a breath demand on the accused. He did not discuss with Constable Berg whether their observations of the accused maybe due to drug usage. He did not perform any tests on the accused to determine if the accused was impaired by drugs or call anotherofficer to do so.

It appears that his view, all along, was that the accused was impaired by alcohol and that Constable Berg’s direction toarrest the accused for the drug charges was merely an interruption as he proceeded to deal with the accused in terms of impairment byalcohol and the making of a breath demand. [37] Given the minimal observations made by Constable Gee and the fact that he never did smell alcohol coming from theaccused, I fail to understand how the officer believed the accused was impaired by alcohol.

I am mindful of the dispatch that the officerhad received however that and the observations that he testified he made prior to the arrest do not lead to the conclusion that the accusedwas impaired by alcohol or otherwise. Constable Gee could have had the accused perform some sobriety tests, he could have questionedthe accused as to whether he had been drinking that night, he could have attempted to smell the accused’s breath to determine if therewas an odour of alcohol coming from him or he could have considered whether he had grounds for an approved screening device test. He didn’t do any of these things.

It appears to me that rather than doing some proper investigation and assessing the situation based onthe facts, Constable Gee, moments after coming upon the accused, simply assumed that he was impaired by alcohol and arrested him. Even if it could be said that Constable Gee, on his observations, had an honest belief, I am not satisfied on the evidence in this case, thata reasonable person in the place of Constable Gee would conclude that the accused was impaired by alcohol. (For a similar analysis andresult see R. v. Paton, [2006] S.J. No. 694 (Sask. Prov. Ct.); R. v. Bilokrely, [2007] O.J. No. 5131 (Ont.

C.J.)). Consequently, on theevidence before me, Constable Gee’s reasons for arresting the accused for impaired care and control were not justifiable, the arrest wasunlawful and as such, the accused’s

section 9 Charter right was violated. [38] Before moving on to the next issue, I must comment on two other arguments. First, the Provincial Crown argued that even ifI found Constable Gee’s arrest to be unlawful, section 495(3) deemed it to be lawful. I do not agree. The case law is clear that section495(3) does not go to the issue of whether an accused has been arbitrarily detained or imprisoned. See R. v. Lee, [1987] B.C.J. No. 1592(B.C.S.C.) at page 7 and R. v. Cayer, (ON CA), [1988] O.J. No. 1120 (Ont. C.A.) at pages 11 and 12. [39] In R. v. Munson, [2003] S.J. No. 161 the Saskatchewan Court of Appeal discussed the applicability of

section 495 in theappeal before them. At paragraph 58 of the judgment they had this to say about the purpose of section 495(3): [58] It is worth noting that the only reported authorities respecting section 495(3) and its predecessor provisions seem to indicate that thepurpose of the provision is to prevent persons escaping conviction for resisting arrest if it later transpires that the person was notconvicted of the offence for which he was arrested: R. v. Adams, (SK CA), [1973] 2 W.W.R. 371 (Sask. C.A.); R. v. McKibbon (1973), 21 C.C.C. (2nd) 66 (B.C.C.A.); R. v. Fuhr, (AB CA), [1975] 4 W.W.R. 403 Alta.

C.A.; R. v. Bunn (1986), (MB KB), 29 C.C.C. (3rd) 133 (Man. Q.B.); and R. v. Delong (1989), (ON CA), 47 C.C.C. (3rd) 402 (Ont. C.A.). That is to say the purpose is to discourage persons resisting arrest where they believe they will not be convicted ofthe offence for which they are being arrested. [40] Thus, section 495(3) has no application in relation to my finding that the accused was unlawfully arrested and as a resultarbitrarily detained. [41] Second, I have reviewed the Ontario Court of Appeal’s comments in R v. Duguay et al, (ON CA), [1985]

[41] Second, I have reviewed the Ontario Court of Appeal’s comments in R v. Duguay et al, (ON CA), [1985]O.J. No.2492 wherein they say that not every unlawful arrest is an arbitrary detention. In this case, I do not believe that Constable Geehonestly, but mistakenly, believed he had reasonable grounds to arrest the accused but neither do I believe that there was an entireabsence of grounds. This case falls somewhere within these two ends of the Duguay spectrum.

Reviewing the evidence, I am led to theconclusion that Constable Gee’s departure from what would reasonably be expected of a police officer in this case puts this unlawfularrest at the higher end of the spectrum. Therefore I am satisfied that his lack of reasonable grounds for arresting the accused was anarbitrary detention.

b) Was the subsequent search incident to arrest a violation of the accused’s

section 8 Charter right to be free from unreasonablesearch or seizure? [42] In this case, Constable Berg admitted that his search of the accused’s truck was a search incident to the arrest of the accusedfor impaired care and control. However, since I have determined the arrest of the accused was not lawful, the search incident to thearrest must also be unlawful. [43] In R. v.

Janvier, supra, Madam Justice Jackson, after finding that the arrest of the accused was not lawful, had this to sayabout the search incidental to the accused’s arrest: [50] For the search incident to arrest to be lawful, it is trite law that the arrest itself must be authorized by law. Having found that thearrest was not lawful, it follows that the police officer could not rely on the common law power to search incident to arrest. [44] Constable Berg did not say that he searched the accused’s truck under

section 11 of the Controlled Drugs and Substances Actor as a search incident to an investigative detention. He was very clear that his search was incident to the arrest of the accused. Therefore, there being no valid arrest and no other basis upon which to justify the search, I find that the search of the accused’s truckwas a violation of his right to be secure from unreasonable search or seizure as guaranteed by

section 8 of the Charter. [45] Even had I found that the arrest of the accused was lawful, I still would have concluded that the search of the accused’s truckwas not justified as a search incident to arrest. In R. v. Bulmer, 2005 SKCA 90 , [2005] S.J. No. 437, the Saskatchewan Courtof Appeal made it clear that there is no automatic right to search a vehicle incident to arrest. If an officer is going to search a vehicleincident to a valid arrest, then they have to have a valid purpose for such a search. Madam Justice Jackson, quoting from the SupremeCourt of Canada decision in R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51, stated at paragraph 15 of Bulmer, supra that: [15] . . . In Caslake, the Court stated: [19] As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the policeand public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can beused at the arrestee’s trial. The restriction that the search must be “truly incidental” to the arrest means that the police must beattempting to achieve some valid purpose connected to the arrest.

Whether such an objective exists will depend on what the police werelooking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposesfor a valid search incident to arrest in mind when the search is conducted. Further, the officers belief that this purpose will be served bythe search must be a reasonable one. . . . [21] This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated tothe arrest. That is the reason for the subjective element of the test.

The objective element ensures that the police officer’s belief that heor she has a legitimate reason to search is reasonable in the circumstances.

[22] Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there mustbe some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrestis for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further(See Belnavis, supra). [23] As explained above, these limits will be no different for automobiles than for any other place.

The right to search a car incident toarrest in the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehiclein relation to the place of the arrest, and other relevant circumstances. [46] There was no evidence from Constable Berg that he searched the accused’s truck as a result of officer safety concerns.

Theaccused was not arrested for any weapons offences, there is no indication that the accused had a history of convictions for weaponsoffences, the accused was searched before being placed in the back of Constable Gee’s patrol car and no weapons were located and inthe course of dealing with the accused no threats involving the use of weapons were made by him. I also note that the accused washandcuffed and locked in the back of Constable Gee’s patrol car.

Clearly Constable Berg was not concerned with searching the truck forofficer safety in these particular circumstances. [47] There was also no basis in the evidence before me for a search to protect evidence from destruction or loss. The accused wasthe only occupant of the truck and as pointed out, he was handcuffed and sitting in the back of Constable Gee’s locked patrol car. At thetime, both officers felt he had been drinking and he was charged with impaired care and control. Evidence of impairment would bevisual observations of the accused.

Evidence that the accused was over .08 would have been based on breath tests done at the policestation sometime after the accused’s initial arrest. None of this evidence was in the truck or at risk of being lost or destroyed. [48] Constable Berg stated in examination-in-chief by the Provincial Crown that his reason for searching the accused’s truck wasfor evidence which could have been used at the accused’s trial. The only evidence he could have expected to find to support theimpaired charge would have been the presence of alcohol.

If there was any alcohol in the truck it would have been obvious from acursory search of the truck cab. It seems highly unlikely that someone would conceal an open bottle of alcohol in a cluttered duffel bag. When Constable Berg and Constable Gee first came upon the accused he was asleep behind the wheel of the truck. There was noindication that the accused had made any attempt to hide anything as the officers approached his vehicle. Constable Berg, in histestimony, did not indicate that he suspected that the accused was impaired by drugs or that there were drugs in the truck.

His answers tocertain questions led me to the conclusion that he was satisfied that the signs of impairment he noted were due to alcohol. There was noindication that Constable Gee suspected that the accused’s state was due to drugs or that he asked Constable Berg to search the truck fordrugs. A search incidental to arrest cannot be turned into a general search for anything.

On the facts, there was no reasonable prospectof locating open alcohol in the accused’s duffel bag. [49] Thus, irrespective of my finding in relation to the arrest, I am not satisfied that the search by Constable Berg incident to thearrest of the accused was a valid search and on this basis as well, I conclude that it was a breach of the accused’s Charter right to besecure from unreasonable search or seizure.

c) If there were any Charter violations should the remaining evidence be excluded pursuant to section 24(2) of the Charter? [50] In R. v. Grant (2009), 2009 SCC 32 , S.C.J. No. 32 at paragraph 71, the Supreme Court of Canada said that the newtest for exclusion of evidence under s. 24(2) of the Charter is as follows: [71] . . . .

When faced with an application for exclusion under s. 24(2), a Court must assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct(admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charterprotected interests of the accused (admission may send the message that individual rights count for little), (3) society’s interest in theadjudication of the case on its merits.The Court’s role on a s. 24(2) application is to balance the assessments under each of these lines ofinquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute.

These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to

the s. 24(2) determination as ennunciated in Collins and subsequent jurisprudence. [51] As I address these three factors and balance my assessments, I am cognizant of the fact that there are multiple Charterbreaches in this case. In this decision I found that the police violated the accused’s sections 9 and 8 Charter rights however in my earlierdecision on the voir dire, I also found that the police violated the accused’s right to counsel as guaranteed by

section 10(

b) of theCharter. There are many cases that have held that the cumulative effect of multiple Charter breaches may be indicative of theinattention of the police to the rights of the accused and a part of a larger pattern of disregard for Charter rights. See R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 60 and 61; R. v. Bohn, [2000] B.C.J. No. 867 (B.C.C.A.) at paras.45 to 47; R. v. Logan, 2005 ABQB 321 , [2005] A.J. No. 490 (Alta. Q.B.) at para. 119; R. v. Lauriente, [2010] B.C.J. No. 242(B.C.C.A.) at paras. 27 to 34.

Seriousness of the Charter Infringing state conduct [52] I cannot conclude that this was a case of Constable Gee and Constable Berg deliberately breaching the accused’s Charterrights. However, they were both reckless and showed an insufficient regard for the accused’s Charter rights. Constable Gee was arecruit being trained by Constable Berg that night.

Constable Gee’s failure to properly investigate this matter, his hasty arrest of theaccused and his failure to provide the accused with a reasonable opportunity to contact counsel of his choice leads to the conclusion thathe was not being trained properly or he was disregarding what he had been taught. Constable Berg on the other hand was the teacher. Hehad the experience to know the limits of a search incident to arrest yet he ignored those limits. [53] There was no urgency in this case and no need to secure or preserve evidence. This was, by all accounts, a relativelystraightforward drinking and driving matter.

Yet neither officer took the time to go into the lounge to determine if the accused had beendrinking in there or to see if someone there had called in the original complaint. Neither officer asked any questions of the accused, hadhim do sobriety or drug tests or observed him to determine if there were any other signs of impairment. Viewing the circumstances as awhole, the breaches were indictative of the inattention of both officers to the rights of the accused. They were serious and a blatantdisregard for the accused’s Charter rights.

Impact on the Charter protected interests of the accused [54] The purpose of s. 9 of the Charter is to protect an individual’s right not to be deprived of his liberty. This is a fundamentalright of individuals in a free and democratic society. However, it must be balanced against society’s desire that police be able to arrestand/or charge people who are breaking the law. This balance is achieved through the Criminal Code. For example,

section 495 speaksto an officer’s ability to effect a warrantless arrest. It is not an unfettered ability. There are limitations imposed on the officer as to whenhe can arrest and when he cannot. Given how fundamental this expectation of liberty is, nothing less than strict adherence to the rulesfor taking it away should be tolerated. In this case, being arrested without lawful justification was a serious breach of that fundamentalright to freedom. [55] In this case, Constable Gee did not take the time to do a proper investigation.

He arrested the accused for a particular offencewithout reasonable grounds to do so. He deprived the accused of his liberty without justification. [56] Likewise, one of the purposes of

section 8 of the Charter is to protect an individual’s right to privacy. This too is afundamental right of individuals in a free and democratic society but it must be balanced against society’s desire that police be able toinvestigate crime. This balance is also achieved by statute and the common law. The common law gives police the right to searchincident to a valid arrest. But this is not a limitless right to search for anything and everything and certainly not in the absence of a validarrest.

There are reasonable limits placed on this right, as well there should be, given the right that is at stake. [57] In this case, Constable Berg searched the accused’s vehicle incident to his arrest for a drinking and driving related offence. While I can accept that he hoped to locate some open liquor in the cab of the truck to substantiate the charge the accused was arrested on,I cannot accept that he expected to locate any evidence on this charge in the accused’s cluttered duffel bag.

This search went above andbeyond what the officer could do under the law and was a serious breach of the accused’s right to be free from these sorts ofunreasonable searches.

[ 58 ] As I indicated in my previous decision on the voir dire , one of the purposes of

section 10(

b) is to provide accused persons with an opportunity to make informed choices about their legal rights when they are facing possible criminal jeopardy. An accused must be satisfied that they have received advice that allows them to make an informed decision. An accused is not limited to having to accept the advice of the first lawyer they contact. If they are not satisfied with this advice and express a desire to speak to other counsel then they should be given that opportunity. [ 59 ] In this case, the accused obviously did not speak to Legal Aid or was not satisfied with their advice.

The accused made it clear to Constable Gee that he had not spoken to a lawyer and he still wanted to speak to counsel. The accused needed to know what his options would be if he blew into the Intoxilyzer as opposed to if he refused. This infringement had a significant impact on his ability to get this much needed advice. (See R v Erickson, supra , at para. 93 ) [ 60 ] In a democratic society governed by the rule of law, Canadians have every right to expect that the police abide by the law. In this case, the police did not follow the law. The Charter breaches did not occur in a vacuum.

They occurred as a result of an extremely brief investigation and each breach begat the next. The unlawful arrest led to the unreasonable search incident to the arrest which then led to the accused not getting a proper right to counsel at the police station. They are all serious breaches in their own right but when looked at cumulatively, it was an egregious disregard for the accused’s Charter rights. Society’s interest in the adjudication on the merits [ 61 ] The evidence sought to be excluded is critical to the Crown’s case.

Without the observations of the officers or the drugs that were located in the accused’s duffel bag, the Crown would not have a case. The evidence of the drugs is more reliable than the observations of the officers but all this evidence is crucial to the Crown’s ability to prosecute the accused. Obviously the admission of this evidence would promote society’s interest in having the case adjudicated on its merits.

Balancing the factors [ 62 ] This case involved an extremely short investigation in which the police took short cuts and overstepped the law in several instances evidencing a pattern of disregard of the accused’s Charter rights which I find to be very serious. The police conduct, when considered as a whole, was egregious and the cumulative impact of the breaches on the Charter protected interests of the accused was severe.

Despite society’s interest in bringing to justice those who break the law, the system cannot condone serious state misconduct. [ 63 ] I find some support for this conclusion in the case of R. v. Bohn, supra. While this case was decided long before the Supreme Court of Canada revamped the section 24(2) analysis in Grant , supra, the comments of the British Columbia Court of Appeal at paragraph 46 quoting with approval from the decision of Mr. Justice Doherty in R. v. Golub , supra, are particularly appropriate: [46] . . . .

The moral authority to apprehend and punish those who commit crimes rests on the community’s commitment to the rule of law. Convictions procured by state violations of our most fundamental law lack that moral authority. Respect for the rule of law and the long term viability of the justice system suffers where the police engage in “short cuts” or fail to respect the constitutional rights of those they encounter in the course of the exercise of their duties.

The long term harm to the justice system is not worth the short term gain made by the admission of the evidence which was obtained in a manner that ignores the rule of law. [ 64 ] I agree with Doherty J. and the British Columbia Court of Appeal and conclude that to admit the evidence in the present case would bring the administration of justice into disrepute. Therefore, I exclude all evidence following the improper arrest of the accused.

d) Is the evidence sufficient to prove beyond a reasonable doubt that the accused was impaired and in care and control of a motor vehicle?

[ 65 ] Given that I have excluded the remaining evidence in this case as a result of the Charter breaches there is no need for me to deal with this issue of whether the evidence proves beyond a reasonable doubt that the accused was impaired and in care and control of his vehicle. CONCLUSION [ 66 ] The evidence of the observations of the officers and the drugs found in the accused’s duffel bag having been excluded, there is no evidence that the accused was impaired and had care and control of his vehicle or that he was in possession of codeine or marijuana and I therefore acquit him of the remaining charges on Informations 43397301 and 43397302. ___________________________ D.E. Labach, J