Her Majesty the Queen - v. -, 2014 SKPC 73

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 073 Date: July 23, 2014 Information: 24493864 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bruce Rutherford Appearing: Derek Davidson For the Crown Nicholas Robinson For the Accused JUDGMENT K.A. LANG , J I. INTRODUCTION [ 1 ] The accused, Bruce Rutherford is charged as follows: (1) while his ability to operate a motor vehicle was impaired by alcohol did have the care or control of a motor vehicle contrary to section 253(1) (

a) of the Criminal Code of Canada; and

(2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did have care or control of a motor vehicle contrary to section 253(1) (

b) of the Criminal Code of Canada. [ 2 ] Counsel for Mr. Rutherford argues that his client’s rights under s. 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) have been violated. Mr. Rutherford argues that the officer failed to make the approved screening device (ASD) demand forthwith. He also argues that once the demand was made, the police officer failed to perform the ASD test forthwith. [ 3 ] Finally the accused argues that his s. 10(

a) Charter rights were infringed in that the officer detained the accused but then failed to provide him with any reason for the detention. Further, the accused argues that his s. 10(

b) Charter rights were violated in that he was not given any right to contact counsel even though there was an ability to do so at the roadside and there was a sufficient delay at the roadside that would have provided an opportunity to the accused to call legal counsel. [ 4 ] This decision concerns only the voir dire . II. FACTS [ 5 ] In the voir dire the Crown called only one witness, Cst. Richard Hutchinson. Cst. Hutchinson is a 17 year veteran of the RCMP. [ 6 ] On March 2, 2013, Cst. Hutchinson was on patrol.

At approximately 6:09 p.m., he was travelling north on Pinkie Road in Regina, Saskatchewan when he noticed a white SUV parked on the west shoulder of the road facing south. He noticed a person slumped over in the driver’s seat. The officer would later determine that person to be the accused. The officer knocked on the window of the accused’s vehicle a few times in an effort to awaken the accused. After a few knocks, the accused awoke but looked “confused, having just woken up”. It took two or three minutes to arouse the accused. [ 7 ] The accused then took some time to roll down his window.

The doors to the vehicle were locked. [ 8 ] The officer noticed that the accused had “red glassy” eyes and an odour of alcohol coming from his breath. [ 9 ] The officer asked the accused for his driver’s licence. The accused took out his wallet and began dropping things on his lap. The accused eventually passed the officer a $100.00 coupon instead of his driver’s licence. [ 10 ] The officer noticed a Regina Police Service business card in the documents of the accused. The accused told the officer he did not have a driver’s licence.

The name Bruce Rutherford was contained on some of the documents, one of which appeared to be a 24- hour driving suspension.

The accused was not able to produce any proper identification. [ 11 ] The officer continued to notice a strong smell of alcohol and that the accused’s speech was slurred, slow and deliberate. [ 12 ] The officer testified that the accused admitted to drinking four to five beer, but in cross-examination the officer confirmed that he was mistaken and that the accused actually admitted to having a couple of drinks, four to five hours earlier. [ 13 ] The officer then requested the accused exit his vehicle and performed a “cursory” search before taking him back to the police vehicle.

It took eight to nine minutes after the accused was awoken to deal with the documents and get the accused back to the police vehicle.

[ 14 ] The cursory search resulted in a few documents being provided in the name of the accused but no appropriate identification (such as a driver’s licence). The accused was placed in the back seat of the police vehicle at this point. [ 15 ] Once in the police vehicle, the officer next wrote out some of his notes relating to his initial observations. [ 16 ] The next recorded entry is at 6:25 p.m. (some 16 minutes after the initial stop). At this point the accused is in the back seat of the police vehicle and the officer is performing a driver’s licence check and criminal record check.

The accused was found to be suspended from driving. The officer was now satisfied that he was able to identify the person sitting in the police vehicle. [ 17 ] Having now identified the accused, the officer read the accused the ASD demand at 6:31 p.m. This was 22 minutes after the initial stop, but only six minutes after the accused is placed into the back of the police vehicle. [ 18 ] At 6:36 p.m., the accused successfully provided an appropriate sample into the ASD and registered a fail.

Based on this result, the officer believed he had reasonable and probable grounds to believe he was dealing with an impaired driver. [ 19 ] At 6:37 p.m., the officer arrested the accused for impaired care and control and read the accused his rights to counsel (to which the accused responded he did wish to speak to a lawyer). The officer then read the accused the breath demand at 6:41 p.m. and the police warning at 6:43 p.m.

At 6:51 p.m., the officer left the scene and arrived at the police station at 7:01 p.m. [ 20 ] The officer noted that the accused was cooperative although he continued to note a strong smell of alcohol throughout. At the police station, nothing eventful occurred which forms the basis of any defence.

The accused did have the opportunity to speak with legal counsel and the accused did eventually provide two samples of his breath. [ 21 ] It was noted at the police station that the accused did slur his words on at least one occasion and it was noted that although the accused told the police he was on his way to visit a friend in Indian Head, the police found his vehicle on Pinkie Road.

The accused seemed confused by the location of where his vehicle was found by police. [ 22 ] The accused was lodged in cells and released the following morning. [ 23 ] During cross-examination, the officer was asked several questions relating to the accused’s ability to call legal counsel from the location of the stop. The officer testified that he would not have permitted this because there would have been no privacy for the accused to do so. [ 24 ] I find as a fact the following:

(1) Upon placing the accused in the police vehicle, the accused was detained. This occurred at 6:25 p.m.

(2) The police officer did not advise the accused as to the reason for detention until he performed the ASD demand at 6:31 p.m.

(3) The officer formed a reasonable suspicion of the accused’s impairment at a fairly early stage and at least by the time he asked the accused to step into the police vehicle but wanted to obtain the identity of the accused before making the demand.

(4) The officer did not give the ASD demand prior to putting the accused in the police vehicle because: (

a) he wanted to ascertain the identity of the accused first; (

b) he wanted the accused in a controlled environment;

(

c) he wanted to make sure the accused understood the process; (

d) he did not want to risk the accused getting spooked and trying to drive away after hearing the ASD demand; (

e) he wanted to read off of his card; and (

f) for safety reasons.

(5) The officer wrote in his notebook upon returning to the police vehicle but prior to the ASD demand. The reason for this was so that the officer could ensure the accuracy of his notes.

(6) The officer did not notice that the accused had a cell phone and would not have allowed the accused to call a lawyer had he requested one because there was no privacy; the officer would not have allowed the accused to use the officer’s phone and would not have allowed the accused to exit the vehicle to make a phone call. III. ISSUES 1. Was the accused deprived of his right not to be arbitrarily detained pursuant to s. 9 of the Charter and his right to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter as the police officer did not demand or perform the ASD forthwith? 2.

Was the accused deprived of his right upon arrest or detention to be informed promptly of the reason therefore ( s. 10(

a) Charter rights) and to retain and instruct counsel without delay and to be informed of that right ( s. 10(

b) Charter rights)? 3. If the accused’s rights were breached, is exclusion of the evidence the appropriate remedy under s. 24(2) of the Charter ? IV. ANALYSIS 1. Was the accused deprived of his right not to be arbitrarily detained pursuant to s. 9 of the Charter and his right to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter as the police officer did not demand or perform the ASD forthwith? [ 25 ] The defence complains of two delays which they say violates the “forthwith” requirements of the Criminal Code .

Identification [ 26 ] Firstly, the defence argues that the police officer should not have spent time trying to determine the identity of the accused prior to making the ASD demand. [ 27 ] Defence argues that there was a 22 minute delay between the officer first noticing the accused parked on the side of the road and the ASD demand being made.

However, much of that delay was caused by the accused himself. [ 28 ] The officer testified that once stopped, it took him several minutes to approach the accused’s vehicle and knock on the window as to arouse the accused whom he found slumped over on the steering wheel in the driver’s seat of his vehicle. It took several knocks at the window until the accused was finally aroused. The accused then slowly opened the door at which time a dialogue between the officer and the accused took place relating to the accused providing his licence and vehicle registration.

The accused fumbled through the various documents trying to find his identification. No proper identification was ever provided. Some papers were provided to the officer, which he reviewed, but none contained proper identification. [ 29 ] The officer next took the accused to his police cruiser where, at 6:25 p.m., he performed an identification and criminal records check on the accused. At this point the identity of the accused was determined. The accused was also found to be a suspended driver with a criminal record.

[30] Therefore, was the police officer within his right to spend time determining the identity of the accused prior to movingforward with the ASD demand? [31] In R. v. Muirhead, 2008 ABQB 169 at para. 14, [2008] A.J. No. 264, citing the Alberta Court of Appeal’s ratio in R. v.Kachmarchyk, 1995 ABCA 155 , [1995] A.J. No. 343, 165 A.R. 314, Justice Park held as follows: In the case at bar, the trial judge in essence held once a reasonable suspicion was formed by the investigating officer, the demand for theapproved screening device must be the next consecutive act required from the officer.

With respect, on the basis of that reasoning, onthe facts of this case, it would appear the police officer must make the demand without knowing the identification of the potentialsuspect, or any information respecting the particulars surrounding the motor vehicle or its occupants.

Similarly, on that reasoning basis,one can envision if a lone officer stopped a motor vehicle in a check stop and the driver advised the officer that he had consumed anumber of alcoholic drinks at least 15 minutes before being stopped, the officer, having formed a reasonable suspicion on this admission,must proceed to make a demand for an approved screening device sample. He must make the demand as the next consecutive step.

Inthat scenario the officer would make the demand without knowing any information about the driver, any other occupants of the motorvehicle, the motor vehicle itself, or the overall situation. In my view, that cannot be the test. Surely the officer is entitled to ascertain atleast some of that necessary fundamental investigatory information before making the demand and presenting the approved screeningdevice to a suspected impaired driver.

It stands to reason in the interests of police and public safety, and the interests of the suspect, thepolice officer should know such pertinent information before making the demand and presenting the approved screening device to thesuspected driver. Otherwise the officer would be obtaining a sample from an unknown suspect or could find himself in an unknownsituation with respect to any other occupants of the motor vehicle. These occupants might, too, have been consuming alcohol.

Any suchoccupants could be left unattended while the officer attempted to administer the approved screening device to the unknown suspect. Subsequent mischief could flow. Conversely such a situation would not or could not be in the best interests of the unknown driver. Inmy view the police officer must learn the necessary fundamental investigatory details of the random stop. [32] In Kachmarchyk, supra, an officer pulled over the accused at 12:18 a.m. Upon talking with the accused the officerimmediately detected an odour of alcohol on the accused’s breath.

Between 12:18 a.m. and 12:29 a.m. the officer spoke briefly to apassenger, interviewed the accused and attempted to confirm the accused’s identity. The officer demanded a sample of the accused’sbreath at 12:29 a.m. A unanimous Alberta Court of Appeal held that “[t]hough time is clearly of the essence in making the demand oncea reasonable suspicion is formed, it does not follow that the demand must be made immediately upon first observing indications thatthere may in alcohol in the person’s body.” The 11 minute period for identification purposes was held to be justified. [33] In R. v. Peacock, [2014] A.J.

No. 485, the constable formed a reasonable suspicion that the accused had alcohol in his body at2:25 a.m. At 2:34 a.m. the officer made a roadside screening demand. In the meantime the officer was attempting to identify theaccused. The accused was unable to provide his licence. As a result, the officer escorted the accused to his vehicle to make furtherattempts to identify the accused. The demand was made without successfully identifying the accused. However, the nine minute delaywas held to be reasonable.

Judge Bodnarek held at para. 45 that “[i]t was reasonable for Constable Jennings to attempt to identify Mr.Peacock prior to making the breath demand and in giving Mr. Peacock a reasonable period of time to comply with this request.” [34] The above cases demonstrate that a demand may be made as soon as practicable despite a significant amount of time beingallowed for the purposes of identifying the driver. Although the 11 minute and 9 minute intervals are not as long as the delay in the caseat hand, the principle extracted from these cases is applicable.

So long as it was reasonable for the officer to ascertain identity in thecircumstances, the demand will have been made as soon as practicable. [35] I therefore find that the accused was not arbitrarily detained as it was reasonable for the police officer to establish the identityof the accused before performing the ASD demand. Note Taking [36] The police officer also testified that at some point after he returned to the police cruiser with the accused at 6:25 p.m., butbefore the ASD test was performed at 6:36 p.m., he made some notes.

During this period of time the police officer is also completingidentity checks of the accused and also preparing the machine for the ASD test.

[37] The notes that the police officer made could not have taken long. Not more than a few minutes. I find this to be reasonableunder the circumstances. Much is expected of police officers relating to these types of matters. On the one hand, they are expected tocomply with the forthwith requirements of the Criminal Code and make demands and conduct tests as near to immediately as possible. On the other hand, the police officers are expected to have impeccable notes such that every minute of the stop is accurately recorded.

Itherefore find that the accused was not arbitrarily detained while the officers took a few minutes to make notes in light of all of the othercircumstances. [38] Therefore I do not find a breach of the accused’s s. 8 or s. 9 Charter rights relating to the ASD demand and the forthwithrequirement. [39] In the event that I am in error and Mr. Rutherford was found to have been improperly detained either while he was beingidentified by the officer or while the officer made his notes, then I would conclude that the breaches were not of a significant nature.

Accordingly I would not have excluded any evidence for the same reasons as those given by the Saskatchewan Court of Appeal in thecase of R. v. Anderson, 2011 SKCA 13 , paragraphs 24 to 31, where the Court held: [24] Firstly, one must assess the seriousness of the Charter-infringing state conduct. The Supreme Court provides the rationale for thisline of inquiry at para. 73 of Grant wherein it states: [73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach.

The concern of thisinquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect of admission ofthe evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation,viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteedby the Charter. [25] In my view, the Charter breach was not serious. The Appellant says the requirement the Respondent go back to the police car waslargely for police safety. The demand was made within three minutes.

Although the overall conduct of the police officers wasunfortunate in the circumstances by not informing the Respondent of the reasons why he was asked to go back to the police car, theRespondent knew that he was being questioned about drinking and driving. [26] Secondly, regarding the impact of the breach on the Charter-protected interests of the accused, the Supreme Court gives guidanceat para. 76 of Grant where it states: [76] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused.

Itcalls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact ofa Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [27] In my view, the short period of detention indicates the impact of the breach on the Respondent’s right to be free from arbitrarydetention was minor.

There was no further intrusion into his privacy, or bodily integrity or dignity (Grant, para. 111). [28] Finally, there must be consideration of society’s interest in an adjudication on the merits. The Supreme Court had this to say inGrant: [79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevantto the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion.

This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Courtsuggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence onthe repute of the administration of justice, but the impact of failing to admit the evidence. … [81] … The reliability of the evidence is an important factor in this line of inquiry.

If a breach (such as one that effectively compels thesuspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission ofunreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely,exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfairfrom the public perspective, thus bringing the administration of justice into disrepute. …

[83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case againstthe accused.

Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration ofjustice where the remedy effectively guts the prosecution. [29] Society has an obvious interest in litigating the matter on the merits.

The issue of impaired driving and the potentially seriousconsequences thereof, including endangering the lives of others, leads to inclusion of the evidence. [30] Finally, I refer to para. 111 of the Court’s decision in Grant: [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [31] In all of the circumstances, the admission of the evidence would not bring the administration of justice into disrepute and theevidence should be admitted. The issues grounding the appeal arose during a voir dire.

It is not appropriate in the circumstances tosimply enter a guilty verdict which would preclude the Respondent from raising any potential defences. 2. Was the accused deprived of his right upon arrest or detention to be informed promptly of the reason therefore (s. 10(

a) Charterrights) and to retain and instruct counsel without delay and to be informed of that right (s. 10(

b) Charter rights)? [40] The defence argues that the accused’s s. 10(

a) and 10(

b) Charter rights were violated given that the accused was clearlydetained when he was placed into the back of the police cruiser at 6:25 p.m. and was not immediately given any reason for the detentionor the ability to contact legal counsel. [41] The Crown concedes, and rightfully so, that a s. 10(

a) violation occurred stemming from the above noted scenario. Theaccused was detained at 6:25 p.m. and was not made aware of the reasons for that detention until the ASD demand was made upon himat 6:31 p.m. A period of six minutes. And while there is perhaps some argument about whether or not there was also a s. 10(b)violation, it is clear that no rights to counsel were given to the accused after the detention at 6:25 p.m. until 6:37 p.m. A total of 12minutes. [42] In the Supreme Court of Canada case in R. v. Suberu, 2009 SCC 33 the Court states: The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(

b) Charter right to retain andinstruct counsel is triggered at the outset of an investigative detention - a question left open in R. v. Mann. It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination and theinterference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. Therefore, from the moment anindividual is detained, s. 10(

b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detaineeof his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, orto reasonable limitations that are prescribed by law and justified under s. 1 of the Charter. [43] Unquestionably on the facts as I have found them, the accused’s s. 10(

a) rights were violated due to the fact that the accusedwas detained in the back of the police cruiser for a period of six minutes before the ASD demand was made. During this time theaccused was not told the reason for his detention contrary to s. 10(

a) of the Charter. [44] With respect to s. 10(

b) of the Charter, these rights are suspended (see R. v. Orbanski; R. v. Elias, 2005 SCC 37) while theofficer is identifying the accused (driver’s licence and registration) or checking for sobriety. In this case the officer was doing bothduring the period in which Mr. Rutherford was detained and accordingly I find no breach of the accused’s s. 10(

b) rights. 3. If the accused’s rights were breached, is exclusion of the evidence the appropriate remedy under s. 24(2) of the Charter?

[ 45 ] Having found breaches of Mr. Rutherford’s s. 10 (

a) rights under the Charter , I must consider whether any evidence gained in connection with those breaches ought to be excluded pursuant to s. 24(2) of the Charter . I will consider the three avenues of inquiry outlined in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. [ 46 ] With respect to the first line of inquiry, the seriousness of the breaches, I consider any breach of s. 10 (

a) to be significant however, it must be noted that the s. 10 (

a) breach in reality constituted a period of six minutes from the time the accused was placed in the police cruiser at 6:25 p.m. until the ASD demand was made at 6:31 p.m. Much of this delay was brought on by the actions of the accused in being unable to provide proper identification to the police officer. [ 47 ] Considering the second line of inquiry, I do not find that the impact of the breaches on Mr. Rutherford’s Charter protected interests to be particularly serious. I note that, it was a relatively short amount of time in which Mr. Rutherford’s s. 10 (

a) rights were suspended and that little to no evidence was gained that would not have been gained in the normal course. [ 48 ] Considering the third factor, society’s interest in adjudication of the case on its merits, I am mindful of the fact that alcohol related driving offences are a significant problem in Saskatchewan. The grounds existed for an ASD demand, as it was clear that Mr. Rutherford, being found slumped over the steering wheel in the driver’s side of his vehicle and smelling of alcohol and being unable to find identification all pointed to signs of a valid ASD demand being made.

Analysis of this factor weighs in favour of admitting the evidence. [ 49 ] Balancing the three factors, I am of the view that this is a case where admission of the evidence would not bring the administration of justice into disrepute and accordingly no evidence will be excluded however in the event that Mr. Rutherford is convicted of either of the offences for which he is charged, some consideration may be given to the Charter breach in the sentencing of Mr. Rutherford. K.A. Lang, J